Columbia  59nitiers^ttj) 

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THE  LIBRARIES 


A  SURVEY  OF  INTERNATIONAL 

RELATIONS  BETWEEN  THE 

UNITED  STATES  AND 

GERMANY 

AUGUST  1,  1914— APRIL  6,  1917 

BASED  ON  OFFICIAL  DOCUMENTS 

BY 
JAMES  BROWN  SCOTT 

Doctor  of  Jurisprudence  of  the  University  of  Beidelbtrg ,    Technical  Delegate  of  the  United  States 

to  the  Second  Uar}ue  Peace  Conference.  Member  of  the  Institute  of  International  Law; 

President  of  the  American  Institute  of  Intemationat  Law.    Major  and  Judg* 

Advocate,  United  States  Beservet  . 


EJiow  once  and  for  all  that  in  the  matter  of  kingcraft  we  take  when  we 
can,  and  that  we  are  never  wrong  unless  we  have  to  give  back  what  we 
have  taken. 

— Fbedebick  the  Great:  Les  Matinees  Royales,  circa  1764. 

The  true  honor  and  dignity  of  the  Nation  are  inseparable  from  justice. 
— Albert  Gallatin:  Peace  with  Meonco,  1847. 


NEW  YORK 
OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  :  85  West  82nd  Strkkt 
LONDON,  TORONTO,  MELBOURNE,  AND  BOMBAY 

1917 


COPYRIGHT  1818 

BY   THB 

OXFORD  UNIVERSITY  PRESS 
AuERicAN  Branch 


THE    QUINN    «    eODEN    CO.    PREU 
RAHWAY,  «.  f.<  <     ,  , 


RESPECTFULLY  DEDICATED  TO  THE  HONOEABLE  ROBERT  LANSING, 

SECRETARY     OF     STATE     OF     THE     UNITED     STATES,     AND 

THROUGH    HIM    TO    HIS    COUNTRYMEN    AND    TO   ALL 

PARTISANS    OF    JUSTICE    BETWEEN    NATIONS, 

WHOSE  CAUSE  HE  HAS  FINELY  STATED 

AND    FAITHFULLY    SERVED 


PUBLISHERS'  PREFACE 

The  publishers  announce,  separate  and  distinct  from,  but  to  be 
used  in  connection  with  the  present  volume,  the  Diplomatic  Corre- 
spondence between  the  United  States  and  Germany  from  August  1, 
1914,  to  April  6,  1917,  the  date  of  the  declaration  of  a  state  of  war 
by  the  Congress  of  the  United  States  against  the  Imperial  German 
Government,  and  President  Wilson's  Messages,  Addresses,  and  Papers 
on  Foreign  Policy.  These  volumes  are  of  the  same  format  as  the  Sur- 
vey of  International  Relations  between  the  United  States  and  Ger- 
many, 1914-1917,  and  they  are  edited  by  its  author. 

The  differences  of  opinion,  crystallizing  into  opposition,  and 
resulting  eventually  in  war  between  the  United  States  and  Germany, 
are  stated  clearly,  unmistakably,  and  ojfficially  in  the  Diplomatic 
Correspondence  between  the  two  Governments  since  the  outbreak  of 
the  European  "War  in  1914,  and  up  to  the  declaration  of  war  by  the 
United  States  because  of  the  controversies  between  the  two  countries. 
The  Diplomatic  Correspondence  makes  the  case  of  the  United  States, 
just  as  the  Diplomatic  Correspondence  is  the  defense  of  Germany. 
Upon  this  Correspondence  each  country  rests  its  case,  and  upon  this 
Correspondence  each  is  to  be  judged.  It  is  thought  best  to  present 
it  in  a  volume  by  itself,  disconnected  from  narrative  or  from  corre- 
spondence with  other  belligerent  nations,  which  would  indeed  have 
been  interesting  but  not  material  to  the  present  case. 

President  Wilson's  views  upon  foreign  policy  were  important 
during  the  neutrality  of  the  United  States,  and  it  is  even  more 
important  to  understand  them  now,  inasmuch  as  they  are  the  views 
of  the  United  States  at  war  and  indicate  in  no  uncertain  way  the 
attitude  which  the  United  States  under  President  Wilson's  guidance 
may  be  expected  to  assume  in  the  negotiations  which  must  one  day 
bring  about  peace  to  a  long-suffering  and  war-ridden  world.  This 
volume  is  of  interest  to  Mr.  Wilson's  countrymen;  it  is  of  interest 
to  the  belligerents;  it  is  of  interest  to  the  neutrals,  whose  cause 
Mr.  Wilson  has  championed. 

The  publishers  have  pleasure  in  announcing  that  the  author  of  "A 
Survey  of  International  Relations  between  the  United  States  and  Ger- 
many" and  editor  of  ''President  Wilson's  Messages,  Addresses,  and 
Papers  on  Foreign  Policy ' '  and  of  the  ' '  Diplomatic  Correspondence, ' ' 
has  directed  that  the  royalties  due  him  be  presented  to  the  Depart- 
ment of  State  War  Relief  Work  Committee,  of  which  Mrs.  Robert 

Lansing  is  President. 

OXFORD  UNIVERSITY  PRESS 
September   16,  1917.  American  Branch 


TABLE  OF  CONTENTS 

INTRODUCTION 

PAOK 

1.  Address  to  the  Congress  hj  the  President  of  the  United  States,  April  2, 

1917,  recommending  a  declaration  of  war  against  the  Imperial 

German  Government xiii 

2.  Joint  Resolution  of  Congress  declaring  a  state  of  war  to  exist  between 

the  United  States  and  the  Imperial  German  Government,  April  6, 

1917 xxi 

3.  German   Conceptions  of   the   State,   International   Policy,   and   Inter- 

national Law xxii 

(a)  Frederick  the  Great               xxii 

(b)  Georg  Wilhelm  Friedrich  Hegel xxxv 

(c)  Karl  von  Clausewitz xxxix 

(d)  Ernst  Moritz  Arndt xli 

(e)  Frederick  William  IV,  King  of  Prussia   ....  xlii 

(f)  Theodor  Mommsen xlii 

(g)  Prince  Otto  von  Bismarck xliii 

(h)     Count  Helmuth  von  Moltke xlvii 

(i)      Adolf   Lasson 1 

(j)      Gustav  Riimelin Ixx 

(k)     Heinrich  von  Treitschke Ixxiii 

(1)      Kriegsbrauch  im  Landkriege xci 

(m)    Friedrich  von  Bernhardi xcii 

(n)     Theobald  von   Bethmann-HoUweg cxii 

(o)     William  II,  German  Emperor  and  King  of  Prussia  .       .  cxiv 

4.  Declarations  of  a  State  of  War cxv 

CHAPTER  I 

Genesis  of  the  War  of  1914 1 

CHAPTER  II 

The  Neutrality  of  the  United  States 43 

CHAPTER  III 

German  Charges  of  Unneutral  Conduct 54 

CHAPTER  IV 

Censorship  of  Communications 57 

Section  1.    Cable  and  Wireless 57 

Section  2.    Mail           59 

vii 


viii  CONTENTS 

FAOB 

CHAPTER  V 

Unlawful  Seizure  of  Persons  upon  the  High  Seas 66 

Section  1.    Searching  of  American  Vessels  for  German  and  Austrian 

Subjects 66 

Section  2.    Arrest  of  Americans  on  Neutral  Vessels 72 

CHAPTER  VI 

Restraints  on  Commerce 74 

Section  1.    Contraband 74 

Section  2.    Copper 77 

Section  3.    Trade  with  Neutral  Countries 79 

Section  4.    Trade  with  Germany 91 

Section  5.    Summary 96 

CHAPTER  VII 

Sale  of  Mimitions  of  War 98 

CHAPTER  VIII 

Miscellaneous  Complaints 106 

Section  1.    Sale  of  Dumdum  Bullets 106 

Section  2.  Hovering  of  British  Warships  off  American  Ports  .  .110 
Section  3.  Disregard  of  American  Citizenship  Papers  and  Passports  .  116 
Section  4.    Change  of  Policy  in  regard  to  Loans  to  Belligex'ents     .  118 

Section  5.    Indifference  to  Confinement  of  Noncombatants  in  Detention 

Camps  in  England  and  France 119 

Section  6.    Failure  to  Prevent  Transshipment  of  British  Troops  and 
War    Material    Across    the    Territory    of    the    United 

States 120 

Section  7.    Internment    of    German    Steamship    Oeier   and    the   collier 

Locksun  at  Honolulu 121 

Section  8.    Coaling  of  Warsliips  in  Panama  Canal  Zone  ....      128 
Section  9.    Failure   to    Protest   against    Modification   of    the    Declara- 
tion of  London  by  the  British  Government       .                .      130 
Section  10.  General  Unfriendly  Attitude  of  United  States  toward  Ger- 
many and  Austria 132 

Section  11.  Summary 134 

CHAPTER  IX 

Submarine   Warfare 136 

Section  1.    The  Lusitania 149 

Section  2.    The    Arabic 168 

Section  3.    The  Sussex 169 

CHAPTER  X 
Reprisals,  Retaliation,  Necessity 177 

CHAPTER  XI 

Belligerent  Use  of  Neutral  Flag 197 

CHAPTER  XII 

Mines,  War  Zones,  and  Blockade 205 


CONTENTS  ix 

PAOB 

CHAPTER  XIII 

status  of  Merchant  Vessels 216 

Section  1.    The  Eight  of  Merchant  Vessels  to  Arm 216 

Section  2.    Visit  and  Search 230 

Section  3.    Destruction  of  Prizes 234 

Section  4.    Treatment  of  Armed  Merchant  Vessels  in  the  Present  War  .  247 

CHAPTER  XIV 

The  Accepted  Kules  of  Maritime  Warfare 265 

Section  1.    Views  of  German  Publicists 265 

Section  2.    The  German  Prize  Ordinance 280 

Section  3.    The  Prussian-American  Treaties 285 

CHAPTER  XV 

Renewal  of  Submarine  Warfare 290 

CHAPTER  XVI 

Severance  of  Diplomatic  Relations  and  Proclamation  of  Armed  Neutrality  .     295 

CHAPTER  XVII 

The  Declaration  of  War 298 

CHAPTER  XVIII 

Why  Not  Arbitration? 311 

Section  1.    The  Origin  and  Extent  of  the  Modern  Practice  of  Arbitra- 
tion       311 

Section  2.    The  German  Attitude  towards  Arbitration       ....  314 

Section  3.    The  Frtje   Case 326 

CHAPTER  XIX 

The  Freedom  of  the   Seas 336 

Conclusion 360 

POST  SCRIPTUM 

1.  Reply  of  the  President  of  the  United  States  to  the  Peace  Appeal  of 

the  Pope,  August  27,  1917 361 

2.  Address  of  the  President  of  the  United  States  Delivered  at  a  Joint  Ses- 

sion of  the  Two  Houses  of  Congress,  December  4,  1917       .        .        .     364 

3.  War  with  the  Imperial  and  Royal  Austro-Hungarian  Government  .        .     372 

4.  Joint   Resolution   Declaring  that   a   State   of   War   Exists   between   the 

Imperial  and  Royal  Austro-Hungarian  Government  and  the  Gov- 
ernment and  the  People  of  the  United  States,  and  Making  Pro- 
vision to  Prosecute  the  Same 379 

Index 381 

Note. — In  Chapter  I  the  references  to  the  official  correspondence  of  the 
European  Powers  regarding  the  outbreak  of  the  war  of  1914  are  made  to 
Diplomatic  Documents  Relating  to  the  Outbreak  of  the  European  War,  a  work 
in  two  volumes  edited  by  the  author  of  the  present  volume  and  issued  by  the 
Oxford  University  Press  in  1916.  The  references  in  parentheses  are  to  the 
pages  of  that  publication,  but  the  titles  of  the  memoranda  and  the  numbers 
of  the  documents  are  given  in  each  case,  so  that  the  reader  can  locate  them 
in  other  collections. 

The  references  to  The  Hague  Conventions  and  Declarations  are  made 
throughout  to  a  work  entitled  The  Hague  Conventions  and  Declarations  of 
1899  and  1901,  edited  by  the  author  of  this  volume  and  issued  by  the  Oxford 
University  Press  in  1915,  as  this  publication  gives  the  reservations,  signatures 
and  ratifications  of  the  Powers,  certified  to  by  the  Department  of  State  of 
the  United  States  and  the  Netherland  Government. 


INTRODUCTION 


INTRODUCTION 

1.  ADDRESS  OF  THE  PRESIDENT  OF  THE  UNITED 
STATES  DELIVERED  AT  A  JOINT  SESSION  OF  THE 
TWO   HOUSES   OF   CONGRESS   APRIL   2,   1917: 

Gentlemen  of  the  Congress: 

I  have  caUed  the  Congress  into  extraordinary  session  because 
there  are  serious,  very  serious,  choices  of  policy  to  be  made,  and 
made  immediately,  which  it  was  neither  right  nor  constitution- 
ally permissible  that  I  should  assume  the  responsibility  of 
making. 

On  the  third  of  February  last  I  officially  laid  before  you  the 
extraordinary  announcement  of  the  Imperial  German  Govern- 
ment that  on  and  after  the  first  day  of  February  it  was  its 
purpose  to  put  aside  all  restraints  of  law  or  of  humanity  and 
use  its  submarines  to  sink  every  vessel  that  sought  to  approach 
either  the  ports  of  Great  Britain  and  Ireland  or  the  western 
coasts  of  Europe  or  any  of  the  ports  controlled  by  the  enemies 
of  Germany  within  the  Mediterranean.  That  had  seemed  to  be 
the  object  of  the  German  submarine  warfare  earlier  in  the  war, 
but  since  April  of  last  year  the  Imperial  Government  had  some- 
what restrained  the  commanders  of  its  undersea  craft  in  con- 
formity with  its  promise  then  given  to  us  that  passenger  boats 
should  not  be  sunk  and  that  due  warning  would  be  given  to  all 
other  vessels  which  its  submarines  might  seek  to  destroy,  when 
no  resistance  was  offered  or  escape  attempted,  and  care  taken 
that  their  crews  were  given  at  least  a  fair  chance  to  save  their 
lives  in  their  open  boats.  The  precautions  taken  were  meager 
and  haphazard  enough,  as  was  proved  in  distressing  instance 
after  instance  in  the  progress  of  the  cruel  and  unmanly  busi- 
ness, but  a  certain  degree  of  restraint  was  observed.  The  new 
policy  has  swept  every  restriction  aside.  Vessels  of  every  kind, 
whatever  their  flag,  their  character,  their  cargo,  their  destination, 
their  errand,  have  been  ruthlessly  sent  to  the  bottom  without 
warning  and  without  thought  of  help  or  mercy  for  those  on 
board,  the  vessels  of  friendly  neutrals  along  with  those  of  bel- 

xiii 


xiv  INTRODUCTION 

ligerents.  Even  hospital  ships  and  ships  carrying  relief  to  the 
sorely  bereaved  and  stricken  people  of  Belgium,  though  the  latter 
were  provided  with  safe  conduct  through  the  proscribed  areas 
by  the  German  Government  itself  and  were  distinguished  by 
unmistakable  marks  of  identity,  have  been  sunk  with  the  same 
reckless  lack  of  compassion  or  of  principle. 

I  was  for  a  little  while  unable  to  believe  that  such  things 
would  in  fact  be  done  by  any  government  that  had  hitherto  sub- 
scribed to  the  humane  practices  of  civilized  nations.  Inter- 
national law  had  its  origin  in  the  attempt  to  set  up  some  law 
which  would  be  respected  and  observed  upon  the  seas,  where 
no  nation  had  right  of  dominion  and  where  lay  the  free  high- 
ways of  the  world.  By  painful  stage  after  stage  has  that  law 
been  built  up,  with  meager  enough  results,  indeed,  after  all  was 
accomplished  that  could  be  accomplished,  but  always  with  a  clear 
view,  at  least,  of  what  the  heart  and  conscience  of  mankind  de- 
manded. This  minimum  of  right  the  German  Government  has 
swept  aside  under  the  plea  of  retaliation  and  necessity  and 
because  it  had  no  weapons  which  it  could  use  at  sea  except  those 
which  it  is  impossible  to  employ  as  it  is  employing  them  without 
throwing  to  the  winds  all  scruples  of  humanity  or  of  respect  for 
the  understandings  that  were  supposed  to  underlie  the  intercourse 
of  the  world.  I  am  not  now  thinking  of  the  loss  of  property 
involved,  immense  and  serious  as  that  is,  but  only  of  the  wanton 
and  wholesale  destruction  of  the  lives  of  noncombatants,  men, 
women,  and  children,  engaged  in  pursuits  which  have  always, 
even  in  the  darkest  periods  of  modern  history,  been  deemed 
innocent  and  legitimate.  Property  can  be  paid  for;  the  lives  of 
peaceful  and  innocent  people  cannot  be.  The  present  German 
submarine  warfare  against  commerce  is  a  warfare  against  man- 
kind. 

It  is  a  war  against  all  nations.  American  ships  have  been 
sunk,  American  lives  taken,  in  ways  which  it  has  stirred  us  very 
deeply  to  learn  of,  but  the  ships  and  people  of  other  neutral  and 
friendly  nations  have  been  sunk  and  overwhelmed  in  the  waters 
in  the  same  way.  There  has  been  no  discrimination.  The  chal- 
lenge is  to  all  mankind.  Each  nation  must  decide  for  itself  how 
it  will  meet  it.  The  choice  we  make  for  ourselves  must  be  made 
with  a  moderation  of  counsel  and  a  temperateness  of  judgment 
befitting  our  character  and  our  motives  as  a  nation.  We  must 
put  excited  feeling  away.     Our  motive  will  not  be  revenge  or 


INTRODUCTION  xv 

the  victorious  assertion  of  the  physical  might  of  the  nation,  but 
only  the  vindication  of  right,  of  human  right,  of  which  we  are 
only  a  single  champion. 

When  I  addressed  the  Congress  on  the  twenty-sixth  of  Febru- 
ary last  I  thought  that  it  would  suffice  to  assert  our  neutral  rights 
with  arms,  our  right  to  use  the  seas  against  unlawful  inter- 
ference, our  right  to  keep  our  people  safe  against  unlawful 
violence.  But  armed  neutrality,  it  now  appears,  is  impracticable. 
Because  submarines  are  in  effect  outlaws  when  used  as  the  Ger- 
man submarines  have  been  used  against  merchant  shipping,  it  is 
impossible  to  defend  ships  against  their  attacks  as  the  law  of 
nations  has  assumed  that  merchantmen  would  defend  themselves 
against  privateers  or  cruisers,  visible  craft  giving  chase  upon  the 
open  sea.  It  is  common  prudence  in  such  circumstances,  grim 
necessity  indeed,  to  endeavor  to  destroy  them  before  they  have 
shown  their  own  intention.  They  must  be  dealt  with  upon  sight, 
if  dealt  with  at  all.  The  German  Government  denies  the  right 
of  neutrals  to  use  arms  at  all  within  the  areas  of  the  sea  which  it 
has  proscribed,  even  in  the  defense  of  rights  which  no  modem 
publicist  has  ever  before  questioned  their  right  to  defend.  The 
intimation  is  conveyed  that  the  armed  guards  which  we  have 
placed  on  our  merchant  ships  will  be  treated  as  beyond  the  pale 
of  law  and  subject  to  be  dealt  with  as  pirates  would  be.  Armed 
neutrality  is  ineffectual  enough  at  best;  in  such  circumstances 
and  in  the  face  of  such  pretensions  it  is  worse  than  ineffectual: 
it  is  likely  only  to  produce  what  it  was  meant  to  prevent;  it  is 
practically  certain  to  draw  us  into  the  war  without  either  the 
rights  or  the  effectiveness  of  belligerents.  There  is  one  choice 
we  cannot  make,  we  are  incapable  of  making :  we  will  not  choose 
the  path  of  submission  and  suffer  the  most  sacred  rights  of  our 
nation  and  our  people  to  be  ignored  or  violated.  The  wrongs 
against  which  we  now  array  ourselves  are  no  common  wrongs; 
they  cut  to  the  very  roots  of  human  life. 

With  a  profound  sense  of  the  solemn  and  even  tragical  char- 
acter of  the  step  I  am  taking  and  of  the  grave  responsibilities 
which  it  involves,  but  in  unhesitating  obedience  to  what  I  deem 
my  constitutional  duty,  I  advise  that  the  Congress  declare  the 
recent  course  of  the  Imperial  German  Government  to  be  in  fact 
nothing  less  than  war  against  the  government  and  people  of  the 
United  States;  that  it  formally  accept  the  status  of  belligerent 
which  has  thus  been  thrust  upon  it;  and  that  it  take  immediate 


xvi  INTRODUCTION 

steps  not  only  to  put  the  country  in  a  more  thorough  state  of 
defense  but  also  to  exert  all  its  power  and  employ  all  its  resources 
to  bring  the  Government  of  the  German  Empire  to  terms  and 
end  the  war. 

What  this  will  involve  is  clear.  It  will  involve  the  utmost 
practicable  cooperation  in  counsel  and  action  with  the  govern- 
ments now  at  war  with  Germany,  and,  as  incident  to  that,  the 
extension  to  those  governments  of  the  most  liberal  financial 
credits,  in  order  that  our  resources  may  so  far  as  possible  be 
added  to  theirs.  It  will  involve  the  organization  and  mobiliza- 
tion of  all  the  material  resources  of  the  country  to  supply  the 
materials  of  war  and  serve  the  incidental  needs  of  the  nation 
in  the  most  abundant  and  yet  the  most  economical  and  efficient 
way  possible.  It  will  involve  the  immediate  full  equipment  of 
the  navy  in  all  respects  but  particularly  in  supplying  it  with  the 
best  means  of  dealing  with  the  enemy's  submarines.  It  will 
involve  the  immediate  addition  to  the  armed  forces  of  the  United 
States  already  provided  for  by  law  in  case  of  war  at  least 
five  hundred  thousand  men,  who  should,  in  my  opinion,  be  chosen 
upon  the  principle  of  universal  liability  to  service,  and  also  the 
authorization  of  subsequent  additional  increments  of  equal  force 
so  soon  as  they  may  be  needed  and  can  be  handled  in  training. 
It  will  involve  also,  of  course,  the  granting  of  adequate  credits  to 
the  government,  sustained,  I  hope,  so  far  as  they  can  equitably  be 
sustained  by  the  present  generation,  by  well  conceived  taxation. 

I  say  sustained  so  far  as  may  be  equitable  by  taxation  because 
it  seems  to  me  that  it  would  be  most  unwise  to  base  the  credits 
which  will  now  be  necessaiy  entirely  on  money  borrowed.  It  is 
our  duty,  I  most  respectfully  urge,  to  protect  our  people  so  far 
as  we  may  against  the  very  serious  hardships  and  evils  which 
would  be  likely  to  arise  out  of  the  inflation  which  would  be  pro- 
duced by  vast  loans. 

In  carrying  out  the  measures  by  which  these  things  are  to  be 
accomplished  we  should  keep  constantly  in  mind  the  wisdom  of 
interfering  as  little  as  possible  in  our  own  preparation  and  in  the 
equipment  of  our  own  military  forces  with  the  duty, — for  it  will 
be  a  very  practical  duty, — of  supplying  the  nations  already  at 
war  with  Germany  with  the  materials  which  they  can  obtain 
only  from  us  or  by  our  assistance.  They  are  in  the  field  and  we 
should  help  them  in  every  way  to  be  effective  there. 

I  shall  take  the  liberty  of  suggesting,  through  the  several 


INTRODUCTION  xvii 

executive  departments  of  the  government,  for  the  consideration 
of  your  committees,  measures  for  the  accomplishment  of  the  sev- 
eral objects  I  have  mentioned.  I  hope  that  it  will  be  your  pleas- 
ure to  deal  with  them  as  having  been  framed  after  very  careful 
thought  by  the  branch  of  the  government  upon  which  the  respon- 
sibility of  conducting  the  war  and  safeguarding  the  nation  will 
most  directly  fall. 

While  we  do  these  things,  these  deeply  momentous  things,  let 
us  be  very  clear,  and  make  very  clear  to  all  the  world  what  our 
motives  and  our  objects  are.  My  own  thought  has  not  been 
driven  from  its  habitual  and  normal  course  by  the  unhappy 
events  of  the  last  two  months,  and  I  do  not  believe  that  the 
thought  of  the  nation  has  been  altered  or  clouded  by  them.  I 
have  exactly  the  same  things  in  mind  now  that  I  had  in  mind 
when  I  addressed  the  Senate  on  the  twenty-second  of  January 
last ;  the  same  that  I  had  in  mind  when  I  addressed  the  Congress 
on  the  third  of  February  and  on  the  twenty-sixth  of  February. 
Our  object  now,  as  then,  is  to  vindicate  the  principles  of  peace 
and  justice  in  the  life  of  the  world  as  against  selfish  and  auto- 
cratic power  and  to  set  up  amongst  the  really  free  and  self- 
governed  peoples  of  the  world  such  a  concert  of  purpose  and 
of  action  as  will  henceforth  insure  the  observance  of  those  prin- 
ciples. Neutrality  is  no  longer  feasible  or  desirable  where  the 
peace  of  the  world  is  involved  and  the  freedom  of  its  peoples, 
and  the  menace  to  that  peace  and  freedom  lies  in  the  existence 
of  autocratic  governments  backed  by  organized  force  which  is 
controlled  wholly  by  their  will,  not  by  the  will  of  their  people. 
We  have  seen  the  last  of  neutrality  in  such  circumstances.  We 
are  at  the  beginning  of  an  age  in  which  it  will  be  insisted  that 
the  same  standards  of  conduct  and  of  responsibility  for  wrong 
done  shall  be  observed  among  nations  and  their  governments  that 
are  observed  among  the  individual  citizens  of  civilized  states. 

We  have  no  quarrel  with  the  German  people.  We  have  no 
feeling  towards  them  but  one  of  sympathy  and  friendship.  It 
was  not  upon  their  impulse  that  their  government  acted  in  enter- 
ing this  war.  It  was  not  with  their  previous  knowledge  or 
approval.  It  was  a  war  determined  upon  as  wars  used  to  be 
determined  upon  in  the  old,  unhappy  days  when  peoples  were 
nowhere  consulted  by  their  rulers  and  wars  were  provoked  and 
waged  in  the  interest  of  dynasties  or  of  little  groups  of  ambitious 
men  who  were  accustomed  to  use  their  fellowmen  as  pawns  and 


xviii  INTRODUCTION 

tools.  Self-governed  nations  do  not  fill  their  neighbor  states 
with  spies  or  set  the  course  of  intrigue  to  bring  about  some  criti- 
cal posture  of  affairs  which  will  give  them  an  opportunity  to 
strike  and  make  conquest.  Such  designs  can  be  successfully 
worked  out  only  under  cover  and  where  no  one  has  the  right  to 
ask  questions.  Cunningly  contrived  plans  of  deception  or  aggres- 
sion, carried,  it  may  be,  from  generation  to  generation,  can  be 
worked  out  and  kept  from  the  light  only  within  the  privacy  of 
courts  or  behind  the  carefully  guarded  confidences  of  a  narrow 
and  privileged  class.  They  are  happily  impossible  where  public 
opinion  commands  and  insists  upon  full  information  concerning 
all  the  nation's  affairs. 

A  steadfast  concert  for  peace  can  never  be  maintained  except 
by  a  partnership  of  democratic  nations.  No  autocratic  govern- 
ment could  be  trusted  to  keep  faith  within  it  or  observe  its  cove- 
nants. It  must  be  a  league  of  honor,  a  partnership  of  opinion. 
Intrigue  would  eat  its  vitals  away ;  the  plottings  of  inner  circles 
who  could  plan  what  they  would  and  render  account  to  no  one 
would  be  a  corruption  seated  at  its  very  heart.  Only  free  peo- 
ples can  hold  their  purpose  and  their  honor  steady  to  a  com- 
mon end  and  prefer  the  interests  of  mankind  to  any  narrow 
interest  of  their  own. 

Does  not  every  American  feel  that  assurance  has  been  added 
to  our  hope  for  the  future  peace  of  the  world  by  the  wonderful 
and  heartening  things  that  have  been  happening  within  the  last 
few  weeks  in  Russia?  Russia  was  known  by  those  who  knew  it 
best  to  have  been  always  in  fact  democratic  at  heart,  in  all  the 
vital  habits  of  her  thought,  in  all  the  intimate  relationships  of 
her  people  that  spoke  their  natural  instinct,  their  habitual  atti- 
tude towards  life.  The  autocracy  that  crowned  the  summit  of 
her  political  structure,  long  as  it  had  stood  and  terrible  as  was 
the  reality  of  its  power,  was  not  in  fact  Russian  in  origin,  char- 
acter, or  purpose ;  and  now  it  has  been  shaken  off  and  the  great, 
generous  Russian  people  have  been  added  in  all  their  naive 
majesty  and  might  to  the  forces  that  are  fighting  for  freedom 
in  the  world,  for  justice,  and  for  peace.  Here  is  a  fit  partner 
for  a  League  of  Honor. 

One  of  the  things  that  has  served  to  convince  us  that  the 
Prussian  autocracy  was  not  and  could  never  be  our  friend  is 
that  from  the  very  outset  of  the  present  war  it  has  filled  our 
unsuspecting  communities  and  even  our  offices  of  Government 


INTRODUCTION  xix 

with  spies  and  set  criminal  intrigues  everywhere  afoot  against 
our  national  unity  of  counsel,  our  peace  within  and  without,  our 
industries  and  our  commerce.  Indeed  it  is  now  evident  that  its 
spies  were  here  even  before  the  war  began ;  and  it  is  unhappily 
not  a  matter  of  conjecture  but  a  fact  proved  in  our  courts  of 
justice  that  the  intrigues  which  have  more  than  once  come  peril- 
ously near  to  disturbing  the  peace  and  dislocating  the  industries 
of  the  country  have  been  carried  on  at  the  instigation,  with  the 
support,  and  even  under  the  personal  direction  of  official  agents 
of  the  Imperial  Government  accredited  to  the  Government  of  the 
United  States.  Even  in  checking  these  things  and  trying  to 
extirpate  them  we  have  sought  to  put  the  most  generous  inter- 
pretation possible  upon  them  because  we  knew  that  their  source 
lay,  not  in  any  hostile  feeling  or  purpose  of  the  German  people 
towards  us  (who  were,  no  doubt  as  ignorant  of  them  as  we  our- 
selves were),  but  only  in  the  selfish  designs  of  a  government 
that  did  what  it  pleased  and  told  its  people  nothing.  But  they 
have  played  their  part  in  serving  to  convince  us  at  last  that  that 
government  entertains  no  real  friendship  for  us  and  means  to 
act  against  our  peace  and  security  at  its  convenience.  That  it 
means  to  stir  up  enemies  against  us  at  our  very  doors  the  inter- 
cepted note  to  the  German  Minister  at  Mexico  City  is  eloquent 
evidence. 

We  are  accepting  this  challenge  of  hostile  purpose  because  we 
know  that  in  such  a  government,  following  such  methods,  we 
can  never  have  a  friend ;  and  that  in  the  presence  of  its  organized 
power,  always  lying  in  wait  to  accomplish  we  know  not  what 
purpose,  there  can  be  no  assured  security  for  the  democratic 
governments  of  the  world.  We  are  now  about  to  accept  gauge 
of  battle  with  this  natural  foe  to  liberty  and  shall,  if  necessary, 
spend  the  whole  force  of  the  nation  to  check  and  nullify  its  pre- 
tensions and  its  power.  We  are  glad,  now  that  we  see  the  facts 
with  no  veil  of  false  pretense  about  them,  to  fight  thus  for  the 
ultimate  peace  of  the  world  and  for  the  liberation  of  its  peoples, 
the  German  peoples  included:  for  the  rights  of  nations  great 
and  small  and  the  privilege  of  men  everywhere  to  choose  their 
way  of  life  and  of  obedience.  The  world  must  be  made  safe  for 
democracy.  Its  peace  must  be  planted  upon  the  tested  founda- 
tions of  political  liberty.  We  have  no  selfish  ends  to  serve.  We 
desire  no  conquest,  no  dominion.  We  seek  no  indemnities  for 
ourselves,  no  material  compensation  for  the  sacrifices  we  shall 


XX  INTRODUCTION 

freely  make.  We  are  but  one  of  the  champions  of  the  rights  of 
mankind.  We  shall  be  satisfied  when  those  rights  have  been  made 
as  secure  as  the  faith  and  the  freedom  of  nations  can  make  them. 

Just  because  we  fight  without  rancor  and  without  selfish 
object,  seeking  nothing  for  ourselves  but  what  we  shall  wish  to 
share  with  all  free  peoples,  we  shall,  I  feel  confident,  conduct 
our  operations  as  belligerents  without  passion  and  ourselves 
observe  with  proud  punctilio  the  principles  of  right  and  of  fair 
play  we  profess  to  be  fighting  for. 

I  have  said  nothing  of  the  governments  allied  with  the  Im- 
perial Government  of  Germany  because  they  have  not  made  war 
upon  us  or  challenged  us  to  defend  our  right  and  our  honor. 
The  Austro-Hungarian  Government  has,  indeed,  avowed  its  un- 
qualified indorsement  and  acceptance  of  the  reckless  and  lawless 
submarine  warfare  adopted  now  without  disguise  by  the  Imperial 
German  Government,  and  it  has  therefore  not  been  possible  for 
this  government  to  receive  Count  Tarnowski,  the  Ambassador 
recently  accredited  to  this  government  by  the  Imperial  and 
Royal  Government  of  Austria-Hungary;  but  that  government 
has  not  actually  engaged  in  warfare  against  citizens  of  the  United 
States  on  the  seas,  and  I  take  the  liberty,  for  the  present  at  least, 
of  postponing  a  discussion  of  our  relations  with  the  authorities 
at  Vienna.  We  enter  this  war  only  where  we  are  clearly  forced 
into  it  because  there  are  no  other  means  of  defending  our  rights. 

It  will  be  all  the  easier  for  us  to  conduct  ourselves  as  bellig- 
erents in  a  high  spirit  of  right  and  fairness  because  we  act  with- 
out animus,  not  in  enmity  towards  a  people  or  with  the  desire 
to  bring  any  injury  or  disadvantage  upon  them,  but  only  in 
armed  opposition  to  an  irresponsible  government  which  has 
thrown  aside  all  considerations  of  humanity  and  of  right  and  is 
running  amuck.  We  are,  let  me  say  again,  the  sincere  friends 
of  the  German  people,  and  shall  desire  nothing  so  much  as  the 
early  re-establishment  of  intimate  relations  of  mutual  advantage 
between  us, — however  hard  it  may  be  for  them,  for  the  time 
being,  to  believe  that  this  is  spoken  from  our  hearts.  We  have 
borne  with  their  present  government  through  all  these  bitter 
months  because  of  that  friendship, — exercising  a  patience  and 
forbearance  which  would  otherwise  have  been  impossible.  We 
shall,  happily,  still  have  an  opportunity  to  prove  that  friend- 
ship in  our  daily  attitude  and  actions  towards  the  millions  of 
men  and  women  of  German  birth  and  native  sympathy  who  live 


INTRODUCTION  xxi 

amongst  us  and  share  our  life,  and  we  shall  be  proud  to  prove  it 
towards  all  who  are  in  fact  loyal  to  their  neighbors  and  to  the 
government  in  the  hour  of  test.  They  are,  most  of  them,  as 
true  and  loyal  Americans  as  if  they  had  never  known  any  other 
fealty  or  allegiance.  They  will  be  prompt  to  stand  with  us  in 
rebuking  and  restraining  the  few  who  may  be  of  a  different  mind 
and  purpose.  If  there  should  be  disloyalty,  it  will  be  dealt  with 
with  a  firm  hand  of  stern  repression ;  but,  if  it  lifts  its  head  at  all, 
it  will  lift  it  only  here  and  there  and  without  countenance  except 
from  a  lawless  and  malignant  few. 

It  is  a  distressing  and  oppressive  duty.  Gentlemen  of  the  Con- 
gress, which  I  have  performed  in  thus  addressing  you.  There 
are,  it  may  be,  many  months  of  fiery  trial  and  sacrifice  ahead 
of  us.  It  is  a  fearful  thing  to  lead  this  great  peaceful  people 
into  war,  into  the  most  terrible  and  disastrous  of  all  wars,  civili- 
zation itself  seeming  to  be  in  the  balance.  But  the  right  is  more 
precious  than  peace,  and  we  shall  fight  for  the  things  which  we 
have  always  carried  nearest  our  hearts, — for  democracy,  for  the 
right  of  those  who  submit  to  authority  to  have  a  voice  in  their 
own  governments,  for  the  rights  and  liberties  of  small  nations,. 
for  a  universal  dominion  of  right  by  such  a  concert  of  free  peo- 
ples as  shall  bring  peace  and  safety  to  all  nations  and  make  the 
world  itself  at  last  free.  To  such  a  task  we  can  dedicate  our 
lives  and  our  fortunes,  everj'^thing  that  we  are  and  everything^ 
that  we  have,  with  the  pride  of  those  who  know  that  the  day 
has  come  when  America  is  privileged  to  spend  her  blood  and  her 
might  for  the  principles  that  gave  her  birth  and  happiness  and 
the  peace  which  she  has  treasured.  God  helping  her,  she  can 
do  no  other." 

2.  JOINT  RESOLUTION  DECLARING  THAT  A  STATE 
OF  WAR  EXISTS  BETWEEN  THE  IMPERIAL  GERMAN 
GOVERNMENT  AND  THE  GOVERNMENT  AND  THE  PEO- 
PLE OF  THE  UNITED  STATES  AND  MAKING  PROVISION 
TO   PROSECUTE   THE   SAME. 

Whereas  the  Imperial  German  Government  has  committed 
repeated  acts  of  war  against  the  Government  and  the  people  of 
the  United  States  of  America:  Therefore  be  it 

Resolved  'by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  state 


TLxii  INTRODUCTION 

of  war  between  the  United  States  and  the  Imperial  German 
Government  which  has  thus  been  thrust  upon  the  United  States 
is  hereby  formally  declared ;  and  that  the  President  be,  and  he  is 
hereby,  authorized  and  directed  to  employ  the  entire  naval  and 
military  forces  of  the  United  States  and  the  resources  of  the 
Government  to  carry  on  war  against  the  Imperial  German  Gov- 
ernment; and  to  bring  the  conflict  to  a  successful  termination 
all  of  the  resources  of  the  country  are  hereby  pledged  by  the 
Congress  of  the  United  States.  Champ  Clark 

Speaker  of  the  House  of  Representatives. 

Thos.  R.  Marshall, 
Vice  President  of  the  United  States  and 
Approved,  April  6,  1917,  President  of  the  Senate. 

WooDROw  Wilson.* 

3.  GERMAN  CONCEPTIONS  OF  THE  STATE,  INTER- 
NATIONAL  POLICY,    AND    INTERNATIONAL   LAW. 

Because  the  good  old  ride 
Sufficeth  them, — the  simple  plan, 
That  they  shovJd  take  who  have  the  power, 
And  they  should  keep  who  can. 

(a)  Frederick  the  Great  (1712-1786) 
To  keep  up  the  role  of  an  honest  man  with  knaves  is  very  perilous ; 
to  play  a  sharp  game  in  the  company  of  cheats  is  desperate.  Success 
in  such  an  attempt  is  very  doubtful.  What,  then,  is  to  be  done? 
Either  war  or  negotiation,  just  as  your  very  humble  servant  and  his 
minister  are  now  doing.  If  there  is  anything  to  be  gained  by  it,  we 
will  be  honest;  if  deception  is  necessary,  let  us  be  cheats.' 

Since  it  has  been  agreed  upon  among  men  that  cheating  one's 
fellowmen  is  a  cowardly  act,  an  expression  has  been  sought  for 
which  might  soften  this  act  and  the  word  Politics  has  been  chosen 
to  that  end.  This  word  has  most  certainly  been  employed  only  in 
favor  of  sovereigns,  because  in  decency  we  cannot  be  treated  as 
rogues  and  rascals. 

But  be  that  as  it  may,  here  is  what  I  think  of  politics.  My  dear 
nephew,  by  the  word  Politics  I  understand  that  we  must  seek  to 
deceive  others;  it  is  a  means  of  having  the  advantage,  or  at  least 

^  Frederick  the  Great  to  Minister  de  Podewils,  dated  the  Camp  at  Mollwitz, 
May  12,  1741.  {Politische  Correspondens  Friedrichs  des  Orossen  [Berlin,  1879], 
vol.  1,  pp.  244-245.) 


INTRODUCTION  xxiii 

of  being  on  a  par  with  the  rest  of  mankind;  for  you  may  be  abso- 
lutely certain  that  all  the  states  of  the  world  run  the  same  career 
and  that  it  is  the  hidden  goal  at  which  the  high  and  the  lowly  of 
the  world  aim. 

This  principle  having  been  stated,  never  blush  for  making  alli- 
ances with  a  view  to  your  being  the  only  one  to  draw  advantage 
from  them.  Do  not  commit  the  stupid  mistake  of  not  abandoning 
them  whenever  you  believe  that  your  interests  are  at  stake,  and 
especially  maintain  vigorously  this  maxim,  that  to  despoil  your 
neighbors  is  to  take  away  from  them  the  means  of  doing  you  injury. 

Properly  speaking,  it  is  politics  which  founds  and  preserves  king- 
doms. Therefore,  my  dear  nephew,  you  must  understand  politics 
thoroughly  and  conceive  of  it  in  the  clearest  light.  To  this  end  I 
shall  divide  it  into  Politics  of  the  State  and  into  Private  Politics. 
The  former  concerns  only  the  great  interests  of  the  kingdom;  the 
latter  concerns  the  particular  interests  of  the  Prince.' 

Politics  of  the  State  reduces  itself  to  three  principles:  the  first, 
to  preserve,  and,  according  to  circumstances,  to  aggrandize  one 's  self ; 
the  second,  not  to  make  any  alKance  except  for  one 's  own  advantage ; 

'  Les  Matinies  Royales,  ou  I'Art  de  Regner.  Opuscule  in4dit  de  Frederic  II, 
dit  le  Orand,  roi  de  Prusse.     London,  WjUiams  and  Norgate,   1863,  pp.   18-19. 

General  Savary,  Duke  of  Rovigo,  who  accompanied  Napoleon  in  his  visit  to 
Sans  Souci  in  1806,  purloined  from  Frederick's  desk  a  copy  of  the  Matinees 
Royales,  said  to  be  in  Frederick's  own  handwriting.  A  copy  of  this  was  made 
in  1816  by  one  C.  Whittall,  with  the  Duke's  permission  and  was  published  in 
1901  by  the  copyist's  grandson,  Sir  James  William  Whittall,  in  a  book  entitled 
Frederick  the  Great  on  Kingcraft.  From  the  original  MS.  (London:  Longmans, 
Green  &  Co.,  1901),  pp.  15-16. 

The  French  text  of  Les  Mutinies  Royales,  ou  I'Art  de  Rigner,  to  which  refer- 
ences are  made,  was  edited  in  1863  by  the  late  Lord  Acton  from  a  copy  made  at 
Sans  Souci  in  1806  by  Baron  de  Meneval,  Private  Secretary  to  Napoleon.  It  con- 
tains five  of  the  seven  Mutinies  and  fills  the  thirty-five  pages  of  this  little  volume. 

In  1870  an  English  translation  of  Lord  Acton's  edition  was  issued  in  Boston 
in  a  pamphlet  of  fifty-two  pages,  under  the  highly  significant  and  accurate  title 
of  "Origin  of  the  Bismarck  policy;  or,  The  Hohenzollem  doctrine  and  maxims 
described  and  defined  by  .  .  .  Frederick  the  Great;  his  opinions  on  religion,' 
justice,  morals,  politics,  diplomacy,  statesmanship,  the  German  people,  etc.,  etc. 
Written  by  himself  expressly  for  the  use  of  his  successor  to  the  throne."  Care- 
fully translated  from  an  authentic  copy  of  the  original  manuscript  by  M.  C.  L. 
Boston;    Crosby  &   Damrell,   1870. 

For  the  origin,  nature,  and  authenticity  of  the  Mutinies  Royales,  see  an 
article  entitled  The  Confessions  of  Frederick  the  Great,  and  a  review  of  Buff  on; 
sa  famille,  ses  collaborateurs  et  ses  familiers.  Memoires  par  M.  Humbert- 
Bazile,  son  Secretaire ;  mis  en  ordre,  annates  et  augmentes  de  documents  inedits 
par  M.  Henri  Nadault  de  Buffon.  Paris:  Renouard  (1863),  in  Home  and  Foreign 
Review  for  1863,  vol.  2,  pp.  152-171;  vol.  3,  pp.  704-711,  both  written  by  Lord 
Acton,  the  most  critical  and  painstaking  of  historians,  commonly  called  "  the 
most  erudite  man  of  his  generation."  (See  A  Bibliography  of  the  Historical 
Works  of  Dr.  Creighton,  Dr.  Stubbs,  Dr.  8.  K.  Gardiner,  and  the  Late  Lord 
Acton.  Edited  for  the  Royal  Historical  Society  by  U.  A.  Shaw,  London,  1903, 
pp.  45,  47,  53.) 


xxiv  INTRODUCTION 

and  the  third,  to  make  one's  self  feared  and  respected  in  the  most 
untoward  times. 

When  I  ascended  the  throne  I  visited  the  coffers  of  my  father; 
his  great  economy  enabled  me  to  form  great  projects.  Some  time 
afterwards  I  reviewed  my  troops,  and  I  found  them  superb.  After 
this  review,  I  returned  to  my  coffers  and  found  the  wherewith  to 
double  my  military  force.  As  I  had  just  doubled  my  power,  it  was 
natural  that  I  should  not  limit  myself  to  preserving  what  I  already 
had.  Thus  I  had  soon  resolved  to  profit  by  the  first  opportunity  that 
should  offer.  Meanwhile  I  thoroughly  trained  my  troops  and  made 
every  effort  to  keep  the  eyes  of  all  Europe  riveted  upon  my 
manoeuvers.  I  renewed  them  every  year,  in  order  to  appear  the  more 
thoroughly  versed  in  the  art,  and  finally  I  attained  my  purpose.  I 
turned  the  head  of  all  the  Powers.  Everyone  considered  himself 
lost,  if  he  could  not  move  arms,  feet  and  head  in  the  Prussian  style. 
All  my  soldiers  came  to  think  that  they  were  twice  the  men  they  had 
been  before  when  they  saw  that  they  were  everywhere  aped. 

When  my  troops  had  thus  acquired  an  advantage  over  all  other 
troops,  I  was  busy  only  with  examining  what  pretensions  I  could 
lay  to  various  provinces.  Four  principal  points  offered  themselves 
to  my  view,  Silesia,  Polish  Prussia,  Dutch  Gueldre,  and  Swedish 
Pomerania. 

I  limited  myself  to  Silesia,  because  that  object  deserved  more  of 
my  attention  than  all  the  others,  and  also  because  the  circumstances 
were  more  favorable  to  me.  I  left  to  time  the  care  of  the  execution 
of  my  projects  upon  the  other  points,  and  I  shall  not  undertake  to 
prove  to  you  the  validity  of  my  pretensions  upon  that  province.  I 
have  had  these  pretensions  established  by  my  orators;  the  Empress 
opposed  them  with  her  own  and  the  case  was  ended  by  cannon,  sabre 
and  rifle.    .      .     . 

From  all  this  there  results  that  we  must  always  be  attempting 
something,  and  be  thoroughly  persuaded  that  all  available  means 
are  proper  to  our  purpose.  But  it  is  good  policy  to  be  careful 
not  to  announce  one's  pretensions  with  too  much  vanity,  and  espe- 
cially to  maintain  at  your  court  two  or  three  eloquent  men,  and  to 
leave  it  with  them  to  justify  your  acts.' 

Posterity  will  perhaps  be  surprised  to  find  in  these  memoirs 

'  Les  Matinees  Royales,  pp.   29-32. 

"  The  matter  of  right  is  the  business  of  the  ministers ;  it  is  your  business ; 
it  is  time  to  work  it  up  in  secret,  for  the  troops  have  received  their  orders." 
(Frederick  the  Great  to  Minister  de  Podewils,  November  7,  1740;  PoUtische  Corre- 
spondenz  Friedrichs  des  Orossen  [Berlin,  1879],  vol.  1,  p.  91.) 


INTRODUCTION  xxv 

accounts  of  treaties  entered  into  and  broken ;  although  such  examples 
are  common  in  history,  the  author  of  this  work  could  not  justify 
himself,  if  he  had  no  better  reasons  for  excusing  his  conduct. 

The  interest  of  the  State  must  serve  as  the  rule  for  the  conduct 
of  sovereigns.  Cases  when  alliances  must  be  broken  are  the  following : 
(1)  When  the  ally  fails  to  fulfill  his  engagements;  (2)  when  the  ally 
plans  to  deceive  one,  and  when  one  has  no  other  means  to  prevent 
him;  (3)  when  force  majeure  hangs  over  one  and  compels  one  to 
break  one's  treaties;  (4)  finally,  when  one  lacks  the  means  for  con- 
tinuing the  war.  By  a  sort  of  fatality,  which  I  cannot  explain, 
wealth  of  resources  exercises  an  influence  upon  everything,  and 
princes  are  the  slaves  of  their  means;  the  interest  of  the  State  is  a 
law  unto  them,  and  this  law  is  inviolable.  If  the  prince  is  under 
obligation  to  sacrifice  his  very  self  for  the  salvation  of  his  subjects, 
he  must  a  fortiori  sacrifice  engagements,  the  continuation  of  which 
might  become  harmful  to  them.  Examples  of  treaties  of  this  nature 
which  have  been  broken  are  commonly  met  with  in  history;  it  is  not 
our  intention  to  justify  all  such  cases;  I  venture,  however,  to  affirm 
that  there  are  such  treaties  which  necessity,  wisdom,  prudence,  or 
the  welfare  of  the  people  compel  sovereigns  to  break,  because  there  is 
no  other  means  left  by  which  to  avoid  ruin.  ...  It  appears  to  me 
clear  and  obvious  that  a  private  individual  must  scrupulously  observe 
his  pledged  word,  even  if  he  should  have  inconsiderately  made  such 
a  pledge:  if  another  private  individual  fails  to  observe  his  given 
word,  the  person  against  whom  such  violation  is  committed  can  have 
recourse  to  the  protection  of  the  laws,  and,  whatever  may  be  the 
result  of  such  an  act,  it  is  only  an  individual  who  suffers;  but  to 
what  tribunals  can  a  sovereign  have  recourse  if  another  prince  vio- 
lates engagements  entered  into  with  him?  The  word  of  a  private 
individual  involves  but  the  misfortune  of  one  man;  the  word  of 
sovereigns  may  lead  to  calamities  involving  entire  nations.  This 
matter  may,  therefore,  be  stated  as  follows :  Is  it  better  that  a  people 
should  perish,  or  that  a  prince  should  break  his  treaty?  Where 
would  one  find  the  imbecile  who  would  hesitate  in  answering  this 
question  ? ' 

In  this  work  you  will  meet  with  treaties  entered  into  and  broken ; 
and  I  must  tell  you,  in  regard  to  this  matter,  that  we  are  subordinated 
to  our  means  and  to  our  capacities:  when  our  interests  change,  we 
must  change  our  actions  accordingly.     We  are  employed  to  watch 

^  Histoire  de  mon  temps,  tome  i,  avant-propos  (1775),  pp.  xxvi-xxvii;  CEuvres 
de  FrM^ric  le  Grand,  tome  ii. 


xxvi  INTRODUCTION 

over  the  happiness  of  our  peoples:  therefore,  as  soon  as  we  realize 
that  danger  or  risk  are  involved  for  them  in  an  alliance,  it  is  our 
duty  to  break  such  alliance,  rather  than  to  expose  them  to  the  evil 
effects  thereof;  in  such  case  the  sovereign  sacrifices  himself  for  the 
good  of  his  subjects.  The  annals  of  the  whole  world  furnish  such 
examples;  and  in  truth,  one  can  hardly  act  otherwise.  Those  who 
are  so  severe  in  condemning  such  conduct  are  people  who  regard 
the  pledged  word  as  something  sacred;  they  are  right,  and  as  a 
private  individual,  I  think  as  they  do,  for  a  man  who  pledges  his 
word  to  another,  even  although  he  promised  inconsiderately  some- 
thing which  might  turn  out  to  his  greatest  prejudice,  must  keep 
his  word,  because  honor  is  above  interest;  but  a  prince  who  gives 
his  word,  does  not  commit  only  himself;  for  if  he  did  commit  only 
himself,  the  case  would  be  the  same  as  that  of  a  private  individual; 
but  he  exposes  great  states  and  great  provinces  to  a  thousand  and 
one  misfortunes:  it  is  better,  therefore,  that  the  sovereign  should 
break  his  treaty  rather  than  that  the  people  should  perish.  What 
would  we  say  of  a  ridiculously  scrupulous  surgeon,  unwilling  to 
amputate  the  gangrenous  arm  of  a  man,  because  it  is  an  evil  act 
to  cut  off  a  man's  arm?  Is  it  not  readily  seen  that  it  would  be  by 
far  a  greater  evil  to  let  a  citizen  perish  who  might  have  been  saved? 
I  venture  to  state  that  it  is  the  circumstances  of  an  act,  that  which 
accompanies  and  flows  from  such  act,  by  which  one  is  to  judge 
whether  or  not  it  is  a  good  or  an  evil  act;  but  there  are  few  people 
able  to  judge  of  such  cases  in  full  knowledge  of  the  facts;  men  are 
like  sheep  and  blindly  follow  their  leader:  let  a  wit  deliver  himself 
of  a  catchy  phrase,  and  a  thousand  fools  will  repeat  him.' 

To  form  alliances  for  one 's  OAvn  advantage  is  a  maxim  of  the  State, 
and  there  are  no  powers  which  are  warranted  in  neglecting  to 
observe  it.  Thus  results  this  consequence,  that  an  alliance  must  be 
broken  whenever  it  becomes  prejudicial.  During  my  first  war  with 
the  Queen,  I  forsook  the  French  at  Prague,  because  in  doing  so  I 
acquired  Silesia.  If  I  had  taken  the  French  to  Vienna,  they  would 
never  have  given  me  so  much.  Some  years  afterwards,  I  concluded  a 
new  alliance  with  France,  because  I  desired  to  attempt  the  conquest 
of  Bohemia,  and  because  I  wished  to  treat  them  generously  for  the 
possible  need  I  might  have  of  them.  Since  then  I  have  neglected 
this  nation  in  order  to  go  into  closer  relations  with  the  one  that 
offered  me  more.  When  Prussia,  dear  nephew,  shall  have  made  her 
fortune,  she  will  then  be  able  to  assume  an  air  of  good  faith  and  of 

^  Bistoire  de  mon  temps,  tome  i,  avant-propos  (1746),  pp.  xvi-xvii;  CEuvres 
de  Frederic  le  Grand,  roi  de  Priisse,  tome  ii. 


INTRODUCTION  xxvii 

constancy  such  as,  at  the  most,  becomes  only  great  states  and  little 
sovereigns.  I  have  told  you,  dear  nephew,  polities  and  rascality  are 
synonymous,  and  this  is  true;  still,  you  will  find  in  this  respect, 
some  people  of  good  faith  who  have  formed  for  themselves  certain 
systems  of  probity.  Thus,  you  may  chance  anything  with  your 
ambassadors.  I  have  found  some  who  have  served  me  faithfully, 
and  who,  in  order  to  uncover  a  mystery  would  have  rifled  the  pockets 
of  a  king.  Attach  yourselves  especially  to  those  possessing  the  talent 
of  expressing  themselves  in  vague,  ponderous,  or  ambiguous  phrases. 
You  will  make  no  mistake  in  keeping  some  political  locksmiths  and 
doctors;  they  may  be  of  great  use  to  you.  I  know  from  experience 
all  the  advantages  to  be  derived  through  them.' 

One  of  the  first  principles  of  politics  is  to  endeavor  to  become 
an  ally  of  that  one  of  one's  neighbors  who  may  deal  the  most  dan- 
gerous blows  to  one's  state.  It  is  for  this  reason  that  we  have  an 
alliance  with  Eussia,  because  as  long  as  the  alliance  lasts,  Prussia's 
rear  will  have  nothing  to  fear  from  Russia.^ 

It  has  been  said,  and  the  phrase  has  been  thoughtlessly 
reexpressed  that  treaties  are  useless  because  all  their  stipulations  are 
hardly  ever  fulfilled,  and  because  men  are  no  more  scrupulous  in 
our  century  than  they  have  been  in  other  centuries.  I  answer  to 
those  who  think  in  this  way  that  I  have  no  doubt  whatever  that 
there  have  been,  in  ancient  and  even  in  very  recent  times.  Princes 
who  have  not  exactly  fulfilled  their  engagements;  but  that  it  is 
always  most  advantageous  to  conclude  treaties.  For  every  ally  one 
secures  there  will  be  in  each  ease  an  enemy  the  less,  and,  if  one's 
allies  are  of  no  assistance,  still  they  always  ought  to  observe  an 
exact  neutrality.* 

Nothing  was  more  contrary  to  the  welfare  of  the  Prussian  state 
than  to  allow  the  formation  of  an  alliance  between  Saxony  and 
Russia,  and  nothing  would  have  seemed  more  unnatural  than  to 
sacrifice  a  Princess  of  the  royal  blood  in  order  to  dislodge  the  Saxon 
Princes.  Another  expedient  was  resorted  to.  Of  all  the  German 
Princesses  of  marriageable  age  none  but  the  Princess  of  Zerbst  was 
more  suitable  to  Russia  and  more  likely  to  serve  the  Prussian 
interests.    ... 

When  the  Empress  had  made  up  her  mind  to  choose  the  Princess 
of  Zerbst  for  marriage  with  the  Grand  Duke^  less  difficulty  was  met 

^  Les  Matinees  Rot/ales,  pp,  32-33. 

^Expose  du  gouvernement  prussien — (Euvres  pMlosophiques,  tome  ii,  p.  187; 
CEuvres  de  Frederic  le  Grand,  tome  ix. 

'  L'Antimachiavel — CEuvres  pMlosophiques,  tome  i,  p.  94 ;  (Euvres  de  Fridirio 
le  Grand,  tome  viii. 


xxviii  INTRODUCTION 

with  to  secure  her  consent  for  the  marriage  of  the  Prussian  Princess 
Ulrica  with  the  new  royal  Prince  of  Sweden.  It  was  upon  these 
two  alliances  that  Prussia  relied  for  her  security :  a  Prussian  Princess 
near  the  Swedish  throne  could  not  be  the  enemy  of  the  king,  her 
brother,  and  a  Russian  Grand  Duchess  educated  and  brought  up  on 
Prussian  Territory  and  who  owed  her  fortune  to  the  king,  could  not 
be  hostile  to  him,  without  being  ungrateful." 

By  careful  management  and  intrigue  the  king  succeeded  in  induc- 
ing the  Russian  Czarina  to  choose  the  Princess  of  Darmstadt,  the 
sister  of  the  Princess  of  Prussia,  as  a  wife  for  her  son,  the  Grand 
Duke  Paul.  In  order  to  have  influence  in  Russia  it  was  necessary 
for  Prussia  to  place  there  persons  who  were  likely  to  favor  Prussia. 
It  was  to  be  hoped  that  the  Prince  of  Prussia,  when  succeeding  King 
Frederick,  would  be  able  to  draw  great  advantage  from  the  fact  that 
his  wife's  sister  had  married  the  heir  to  the  Russian  throne.^ 

Natural  allies  are  those  States  the  interests  of  which  are  iden- 
tical with  our  own.  Nevertheless  alliances  may  be  concluded  among 
nations  the  interests  of  which  differ,  although  thej^  will  be  only 
short-lived. 

In  the  present  position  of  Europe  all  States  are  strongly  armed, 
and  as  a  Power  of  superior  strength  can  destroy  the  weaker  ones, 
it  is  necessary  to  conclude  alliances  either  for  mutual  defense  or  for 
foiling  the  plans  of  one's  enemies.  However,  alliances  by  themselves 
do  not  suffice.  It  is  necessary  to  have  in  one's  neighbor  States,  and 
especially  among  one's  enemies,  agents  who  report  faithfully  all  they 
see  and  hear.  Men  are  bad.  It  is  most  necessary  to  protect  one 's  self 
against  being  surprised.    .    .    . ' 

It  is  a  well-known  fact  in  politics  that  the  most  natural  and 
hence,  the  best  allies  are  those  whose  interests  are  identical  with 
our  own.  .  .  .  Strange  events  sometimes  lead  to  extraordinary 
combinations  .  .  .  between  nations  that  have  at  all  times  been 
inimical  and  hostile  to  each  other ;  .  .  .  such  alliances  can  be  only 
short-lived.  ...  In  the  present  position  of  Europe  when  all  the 
princes  are  armed  and  when  from  their  midst  there  may  arise  pre- 
ponderating powers  capable  of  crushing  weaker  ones,  prudence 
requires  that  one  enter  into  alliance  with  other  powei^,  either  to 

^  Histoire  de  mon  temps,  tome  ii,  pp.  29-31;  (Euvres  de  Frid6ric  le  Grand, 
tome  iii. 

2  Memoirs  depuis  la  padx  de  Huhertsbourg,  jusqu'a  la  paix  de  Teschen — i 
(Euvres  de  Frederic  le  Orand,  tome  vi,  p.   57. 

*  Essai  sur  les  formes  de  gouvernement  et  sur  les  devoirs  des  souverains — ' 
(Euvres  philosophiques,  tome  ii,  pp.  201-202;  (Euvres  de  Fridiric  le  Grand, 
tome   ix. 


INTRODUCTION  xxix 

insure  to  one's  self  assistance  in  case  of  attack  or  to  foil  the  dan- 
gerous projects  of  one's  enemies.  .  .  .  But  this  is  not  enough; 
it  is  necessary  to  have  in  one's  neighbor  state,  especially  among 
one's  enemies,  open  eyes  and  ears  that  will  faithfully  report  that 
which  they  have  seen  and  heard. 

If  the  Cabinet  in  Vienna  can  be  gained  to  Prussia's  interests  by 
bribery,  my  Ambassador,  von  Borcke,  had  instructions  given  him  on 
the  7th  of  this  month  to  offer  up  to  200,000  thalers  to  the  Grand 
Chancellor,  Count  Zinzendorff,  and  100,000  thalers  to  the  Secretary 
of  State,  Toussaint.  If  others  have  to  be  bribed.  Count  Cotter  should 
let  me  know,  and  I  will  give  my  orders.    ..." 

Thus,  you  will  skillfully  throw  an  apple  of  discord  among  the 
ministers,  in  order  that  we  may  play  an  easy  game  and  realize  our 
main  object;  and  I  leave  you  full  liberty  to  employ,  besides  flatteries 
and  promises,  as  much  money  as  you  may  judge  proper,  and  Major 
Winterfeld  may  draw  on  the  treasury  of  the  company.^ 

The  situation  in  which  the  King  found  himself  was  delicate  and 
embarrassing.  It  might  have  become  dangerous  if  he  had  not  had 
the  good  luck  to  corrupt  two  persons,  by  means  of  whom  the  King 
was  informed  of  the  most  secret  plans  of  his  enemies.  One  was  named 
"Weingarten,  the  secretary  to  the  Count  de  La  Puebla,  envoy  of 
Austria  to  the  Court  of  Berlin ;  the  other,  a  clerk  [Frederick  William 
Menzel]  in  the  secret  chancellery  of  Dresden,  The  secretary  fur- 
nished copies  of  all  the  dispatches  which  the  minister  received  from 
Petersburg,  Vienna,  and  London;  the  clerk  of  the  secret  chancellery 
at  Dresden  supplied  a  copy  of  the  treaties  between  Russia  and  Saxony 
and  of  the  correspondence  which  Count  Briihl  carried  on  with  Bes- 
tusheff  as  well  as  of  the  dispatches  of  Count  Fleming  of  Vienna. 
.  .  .  Thus,  through  the  agency  of  these  two  men  whom  we  have 
just  mentioned,  there  was  nothing  hidden  from,  the  King,  and  their 
frequent  reports  were  to  him  as  a  compass  to  direct  his  course  between 
the  rocks  which  he  had  to  avoid,  and  prevented  him  from  having 
recourse  to  open  measures  against  a  plan  devised  to  declare  war 
upon  him  immediately.^ 

Religion  is  absolutely  necessary  to  a  state.  This  is  a  maxim  which 
it  would  be  foolish  to  dispute.  A  king  is  very  foolish  to  permit 
his  subjects  to  make  ill  use  of  it;  on  the  other  hand,   a  king  is 

'  PoUtische  Correspondenis  Friedrichs  des  Grossen  (Berlin,  1879),  vol.  1, 
p.    134. 

2  Ibid.,  vol.  1,  p.  172. 

*  Histoire  de  la  guerre  de  sept  ans,  tome  i,  pp.  18-19;  (Euvres  de  FrM6ric  le 
Orand,  tome  iv. 


XXX  INTRODUCTION 

unwise  in  having  any  religion.  Listen  well  to  this,  my  dear  nephew : 
there  is  nothing  that  tyrannizes  the  mind  and  the  heart  more  than 
religion,  because  it  agrees  neither  with  our  passions,  nor  with  those 
great  political  views  which  a  monarch  must  have.  The  true  religion 
of  a  prince  consists  in  desiring  the  interests  of  men  and  his  own 
glory  because  of  his  station;  he  must  be  dispensed  from  having  any 
other;  he  must  have  maintained  a  respectable  outward  appearance 
in  order  to  conform  himself  to  those  who  notice  and  surround  him. 
If  he  fears  God,  or,  to  speak  as  women  and  priests  do,  if  he  fears  hell, 
as  did  Louis  XIV  in  his  old  age,  he  becomes  timid  and  worthy  of 
being  a  Capuchin. 

If  we  are  desirous  of  entering  into  a  treaty  with  other  powers  and 
we  remember  that  we  are  Christians,  we  are  undone,  we  are  always 
duped.  As  regards  war,  it  is  a  trade  in  which  the  least  scrupulous 
would  spoil  everything.  Indeed,  what  man  of  honor  would  ever 
wage  war,  if  he  had  not  the  right  to  make  those  rules  permitting 
of  plunder,  fire,  and  carnage  ? ' 

A  celebrated  author  has  compared  the  military  to  bulldogs  which 
it  was  necessary  to  chain  up  carefully,  and  who  must  not  be  loosed 
except  when  necessary.  This  comparison  is  carried  too  far,  but, 
in  spite  of  that  fact,  it  will  serve  you  not  as  a  maxim,  but  as  a 
warning.    .     .     . 

By  its  nature  my  kingdom  is  military,  and,  properly  speaking, 
it  is  only  by  its  help  that  you  must  hope  to  maintain  and  aggran- 
dize yourself;  it  is  necessary,  therefore,  that  your  mind  should 
ever  be  fixed  upon  this.    .     .     .^ 

A   Prince   who   rules   independently   and   has   formed   his   own 

political  system  will  never  be  placed  in  an  embarrassing  situation 

when  a  prompt  decision  must  be  made ;  for  all  his  acts  are  directed 

to  the  finer  object  he  has  set  unto  himself.    He  must  especially  have 

acquired   the    greatest    imaginable    knowledge    with   regard   to    the 

details  of  army  organization.     Seated  by  the   green   table   a  man 

devises  but  unsatisfactory  plans  for  military  campaigns;  and  what 

can  be  the  use  of  the  finest  plans  for  a  campaign  when  they  break 

down  through  the  ignorance  of  those  who  are  intrusted  with  their 

execution?     The  man  who  does  not  know  the  needs  of  an  army, 

who  does  not  concern  himself  with  the  innumerable  details  of  its 

commissariat,  who  does  not  know  how  an  army  is  mobilized,  who 

does  not  understand  the  rules  of  the  art  of  war  and  who  does  not 

*  Les  Matinees  Roy  ales,  pp.  6-7. 

2  Whittall,  Frederick  the  Great  on  Kingcraft  (London;  Longmans,  Green 
&   Co.,    1901),   pp.   97-98. 


INTRODUCTION  xxxi 

know  how  to  train  soldiers  while  in  garrison  nor  how  to  lead  them 
in  the  field,  such  a  man  will  never  accomplish  great  things,  if  he  is 
not  himself  a  military  leader,  even  although  he  were  a  most  intellec- 
tual and  a  most  skillful  statesman.  Unreservedly,  the  King  of 
Prussia  must  make  war  his  principal  study  and  inspire  the  zeal  of 
those  who  have  chosen  the  noble  and  dangerous  profession  of  arms. 

Prussia  is  surrounded  by  mighty  neighbors.  You  must,  there- 
fore, be  prepared  to  face  many  wars.  From  this  there  follows  that 
the  military  in  Prussia  must  occupy  the  first  position  even  as  was 
the  case  with  the  old  conquering  Romans  during  the  period  of  their 
ascendency,  and  as  was  also  the  case  in  Sweden,  when  Gustavus 
Adolphus,  when  Charles  X  and  Charles  XII  filled  the  world 
with  their  fame  and  the  glory  of  Sweden's  name  penetrated  into  the 
remotest  lands.  Offices,  honors,  and  rewards  conferred  each  in  turn, 
stimulate  and  inspire  talent.  Praise  bestowed  for  merit  arouses  noble 
emulation  in  the  heart  of  the  nobility,  encourages  its  members  to 
enter  the  profession  of  arms,  to  acquire  knowledge  and  leads  them 
to  distinction  and  fortune.  To  show  contempt  toward  officers  and 
to  require  of  them  at  the  same  time  that  they  serve  with  honor, 
is  a  paradox.  You  must  encourage  a  profession  which  forms  the 
power  of  the  kingdom;  you  must  respect  the  pillars  of  the  state 
(if  I  may  so  express  myself  with  regard  to  that  profession),  and 
prefer  it  to  the  effeminate  and  weak-hearted  race  of  men  who  are 
only  fit  as  a  decoration  for  an  ante-chamber.    .     .     . 

Finally  I  venture  to  assert  that  the  ruler  himself  alone  can  intro- 
duce and  maintain  this  wonderful  discipline  in  the  army.  For  he 
must  frequently  assert  his  authority;  some  he  must  blame  severely 
without  distinction  of  person  or  rank;  others  he  must  reward 
liberally;  he  must,  as  frequently  as  possible,  review  the  troops  and 
he  must  not  allow  the  slightest  negligence  to  escape  his  attention. 
The  King  of  Prussia  must,  therefore,  of  necessity  be  a  soldier  and 
the  commander-in-chief.    .     .     .' 

To  make  one's  self  respected  and  feared  by  one's  neighbors  is 
the  very  summit  of  high  politics.  One  may  attain  this  object  in  two 
ways :  first,  to  have  real  power  and  actual  resources ;  second,  to  know 
how  to  make  the  most  of  one's  available  strength.  We  are  not 
within  the  first  case.  For  this  reason  I  have  neglected  nothing  that 
might  put  me  in  the  second  case.  There  are  powers  that  imagine 
that  an  embassy  must  always  be  carried  on  with  great  pomp.    .     .    . 

'  Bolz,  Ausgewdhlte  Werke  Friedriehs  des  Grossen  (Berlin,  1916),  vol.  2, 
pp.  69-71. 


xxxii  INTRODUCTION 

Never  ask  for  anything  in  half-hearted  fashion.  Rather,  have 
the  air  of  exacting  it.  If  anyone  fail  you,  reserve  your  vengeance 
until  the  moment  when  you  can  get  complete  satisfaction,  and, 
above  all,  do  not  fear  reprisals.  Your  glory  will  never  suffer  from 
them;  so  much  the  worse  for  your  subjects  upon  whom  these 
reprisals  will  fall.  But  here  is  the  real  point.  All  your  subjects 
should  be  convinced  that  you  suspect  nothing  and  that  nothing  can 
astonish  you. 

Above  all,  endeavor  to  pass  with  them  for  a  dangerous  man  who 
knows  no  other  principles  but  those  that  lead  to  glory.  Act  in  such 
a  manner  that  they  will  certainly  feel  that  you  would  rather  lose 
two  kingdoms  than  not  to  play  a  role  for  posterity.  As  these  senti- 
ments demand  an  uncommon  soul,  they  strike,  they  bewilder  the 
greater  part  of  men,  and  it  is  this  which  constitutes  the  greatest 
monarch  in  this  world. 

If  a  stranger  should  come  to  your  court,  shower  civilities  upon 
him,  and  especially  endeavor  to  have  him  always  near  you;  this  is 
the  true  means  of  concealing  from  him  the  vices  of  your  govern- 
ment. If  he  is  a  soldier,  make  your  regiment  of  guards  manoeuver 
before  him,  and  let  it  be  yourself  who  is  in  command.  If  he  is  a 
wit  who  has  composed  a  work,  let  him  see  it  lying  on  your  table 
and  talk  with  him  of  his  talents.  If  he  is  a  merchant,  listen  to  him 
with  kindness,  flatter  him  and  try  to  get  him  to  establish  himself 
in  your  country.' 

The  number  of  troops  maintained  by  a  State  must  be  in  propor- 
tion to  the  troops  of  its  enemies;  ...  it  may  be  said  perhaps 
that  the  prince  must  rely  upon  the  help  of  his  allies  .  .  .  ;  this 
would  be  true  if  the  allies  were  what  they  should  be ;  but  their  zeal 
is  but  lukewarmness,  and  we  are  certainly  deceiving  ourselves  if  we 
rely  upon  other  than  ourselves.    .     .     .^ 

1  give  you  a  problem  to  solve.  When  one  has  the  advantage, 
should  he  or  should  he  not  avail  himself  of  it?  I  am  ready  with 
my  troops  and  all  else;  if  I  do  not  make  use  of  them,  I  hold  within 
my  hands  a  good  thing  which  I  fail  to  use;  if  I  do  make  use  of 
them,  it  will  be  said  that  I  have  the  skill  to  avail  myself  of  the 
superiority  which  I  have  over  my  neighbors.' 

The  politics  of  invasion  has  established  as  its  principle  that  the 
first  step  for  the  conquest  of  a  country  is  to  get  a  footing  upon  it, 

*  Les  Matinees  Royales,  pp.  33-35. 

2  Essai  siir  les  formes  de  gouvernement — CEuvres  philosophiques,  tome  ii, 
p.  203 ;  CEuvres  de  FrM^ric  le  Grand,  tome  ix. 

'  Politische  Correspondenz  Friedrichs  des  Grossen,,  vol.   1,  p.  84. 


INTRODUCTION  xxxiii 

and  it  is  this  which  offers  the  greatest  difficulty;  the  rest  is  decided 
by  the  fate  of  arms  and  by  the  right  of  the  stronger.  .   .    ,  ^ 

The  permanent  principle  for  Princes  is  to  aggrandize  their 
dominions  as  far  as  their  power  permits  them  to  do  so ;  and  although 
such  aggrandizement  be  subject  to  different  and  infinitely  varied 
modifications,  either  in  view  of  the  geographic  position  of  the  states, 
or  of  the  strength  of  one's  neighbors,  or  again  as  the  constellations 
are  of  good  augury,  the  principle  is  none  the  less  invariable,  and 
Princes  never  depart  from  it;  their  pretended  fame  is  at  stake; 
in  other  terms,  it  is  necessary  for  them  to  extend  their  dominions.^ 

Politics  must  look  as  far  as  possible  into  the  future,  and  calculate 
the  political  affairs  of  Europe,  either  with  a  view  to  forming 
alliances  or  to  thwart  the  plans  of  one's  enemies.  It  is  wrong  to 
believe  that  politics  can  create  the  desired  events;  but  when  they 
present  themselves,  it  must  seize  them  in  order  to  profit  by  them. 
This  is  the  reason  for  keeping  one 's  finances  in  good  order.  It  is  also 
for  this  reason  that  money  must  always  be  kept  in  reserve,  in  order 
that  the  government  may  be  ready  to  act  as  soon  as  political  reasons 
make  it  clear  that  the  moment  for  action  has  come.  War  itself  must 
be  waged  in  accordance  with  the  principles  of  politics,  in  order  to 
deal  the  most  sanguinary  blows  to  one's  enemies.^ 

When  sovereigns  wish  to  come  to  a  break,  they  are  not  restrained 
by  the  form  of  the  manifesto  which  is  to  make  the  matter  public; 
they  make  up  their  minds  to  that  effect,  wage  war,  and  leave  to  some 
painstaking  jurisconsult  the  trouble  of  justifying  them.* 

There  are  wars  of  precaution  which  it  is  wise  for  princes  to 
undertake.  In  truth,  such  wars  are  offensive  wars,  but  they  are 
nevertheless  just  wars. 

When  the  excessive  greatness  of  a  state  seems  on  the  point  of 
overflowing  its  boundaries  and  threatening  to  swallow  up  the  world, 
it  is  prudent  to  oppose  dykes  against  it  and  to  stop  the  tempestuous 
course  of  a  torrent  while  there  is  still  time  to  make  one's  self  master 
of  it.  Clouds  are  gathering,  a  tempest  is  on  the  rise  and  lightning 
announces  its  coming ;  and  the  sovereign  threatened  by  this  danger — 
if  alone  he  cannot  control  the  tempest — will,  if  he  be  wise,  combine 
with   all  those  imperiled   alike   and  whose   interests   are   identical. 

'  Considerations  sur  I'Etat  present  du  corps  politique  de  I'Europe — CEuvres 
philosophiques,  tome  i,  p.  10;   CEuvres  de  FrMeric  le  Grand,  tome  viii. 

^Ibid.,  p.  15. 

'Expose  du  Oouvernement  prussien — CEuvres  philosophiques,  tome  ii,  p.  190; 
CEuvres  de  Frederic  le  Grand,  tome  ix. 

*  Histnire  de  la  guerre  de  sept  ans,  tome  i,  p.  25;  CEuvres  de  Frederic  le 
Orand,  tome  iv. 


xxxiv  INTRODUCTION 

If  the  kings  of  Egj'pt,  of  Sj'ria,  and  of  Macedonia  had  united  against 
the  power  of  Rome,  the  latter  would  never  have  been  able  to  over- 
throw them ;  a  carefully  devised  alliance  and  a  vigorously  prosecuted 
war  would  have  thwarted  those  ambitious  plans  whose  realization 
enslaved  the  world.    .     .     . 

It  is  better,  therefore,  that  a  prince  engage  in  an  offensive  war 
while  he  is  still  free  to  choose  between  the  olive  branch  and  the 
laurel  wreath,  than  that  he  should  wait  until  times  become  desperate 
and  when  a  declaration  of  war  could  but  postpone  for  a  short 
while  his  enslavement  and  ruin.  It  is  an  accepted  maxim  that  it  is 
better  to  anticipate  than  to  be  anticipated;  all  great  men  have  fared 
well  in  following  it.  .   .   .^ 

As  the  state  is  not  rich  care  must  be  had,  above  all,  not  to  have 
anything  to  do  with  wars  where  nothing  is  to  be  gained,  because 
one's  strength  becomes  exhausted  to  no  purpose,  and  also  because 
if  a  good  opportunity  should  present  itself  afterward,  one  could  not 
take  advantage  of  it.  All  distant  acquisitions  are  a  burden  to  the 
state.  A  village  on  the  frontier  is  more  important  than  a  princi- 
pality sixty  leagues  away.  It  is  necessary  to  conceal,  as  far  as 
possible,  one's  designs  of  ambition,  and,  if  possible,  to  awaken  the 
envy  of  Europe  against  other  powers,  under  the  auspices  of  which 
one  strikes  the  intended  blow.  .  .  .  Secrecy  is  an  essential  virtue 
both  in  politics  and  in  the  art  of  war.^ 

Politics,  the  army,  and  the  finances  are  branches  so  closely  bound 
together  that  they  cannot  be  separated;  all  three  must  be  carefully 
attended  to,  and  from  their  combination,  controlled  by  the  rules 
of  sound  politics,  there  result  the  greatest  advantages  for  the 
states.^ 

The  prince,  therefore,  is  not  a  despot,  whose  only  rule  is  caprice, 
who  must  be  looked  upon  as  the  central  point  where  all  the  lines 
of  the  circumference  unite.  This  government  maintains  in  its  delibera- 
tions the  secrecy  which  is  absent  in  republics,  and  the  various 
branches  of  the  administration  being  coordinated,  can  get  together 
like  the  ancient  Roman  quadriga,  mutually  cooperating  for  the  gen- 
eral public  welfare.  Furthermore,  you  will  find  less  party  spirit 
and  less  strife  in  monarchies  than  in  republics,  provided  the  former 
have  a  strong  sovereign  at  their  head,  it  being  a  fact  that  republics 

^  L'Antimachiavel  ou  Examen  du  Prince  de  Machiavel — CEuvres  philoaophiques, 
tome  i,  p.  159;   Q^uvres  de  Fr^d^ric  le  Grand,  lome  viii 

'  Expos^.  du  Gouvernement  prussien — CEuvres  phtlosophiques,  tome  ii,  p.  190; 
CEuvres  de  Frederic  le  Grand,  tome  ix. 


INTRODUCTION  xxxv 

are  frequently  torn  asunder  by  the  citizens  who  are  intriguing  and 
caballing  to  overthrow  one  another.^ 

Sweden,  which  under  rulers  like  Gustavns  Adolphus  and  Charles 
XII  had  been  regarded  as  the  home  of  valor,  became  in  these  times  a 
model  of  cowardice  and  infamy;  .  .  .  thus,  kingdoms  and  empires, 
after  having  risen  to  the  greatest  glory,  may  grow  weak  and  rush 
to  their  fall.  .  .  . 

The  political  reason  for  these  changes  may  probably  be 
found  in  the  different  forms  of  government  through  which  the 
country  passed.  While  Sweden  was  a  monarchy,  the  army  was  held 
in  honor;  it  was  useful  for  the  defense  of  the  state,  and  could  never 
have  become  a  danger  to  it.  In  a  republic  we  witness  the  opposite 
conditions ;  by  its  very  nature  the  government  must  be  peaceful  and 
the  army  must  be  held  under;  one  has  everything  to  fear  from  gen- 
erals to  whom  the  troops  are  devoted;  it  is  such  generals  who  may 
bring  about  a  revolution.  In  republics  ambition  and  intrigue  combine 
if  one  would  achieve  success;  corruption  gradually  debases  them, 
and  the  true  sense  of  honor  is  lost  sight  of,  because  success  may  be 
attained  through  means  which  do  not  require  any  merit  on  the  part 
of  the  office  seeker.  Furthermore,  secrecy  is  never  observed  in  the  re- 
publics; the  enemy  knows  their  plans  in  advance  and  can  thwart  them.^ 


(b)    Georg  WilJielm  FriedricJi  Hegel  ( 1770-1831  )3 

In  that  which  has  just  been  stated  we  have  discovered  the  ethical 
motive  of  war,  which  is  not  to  be  regarded  as  an  absolute  evil 
or  as  a  mere  external  accident  which  may  have  its  own  acci- 
dental ground,  no  matter  where  it  may  be  met  with,  either  in 
the  passions  of  those  wielding  power  or  of  peoples,  in  injustice, 
etc.,  or  generally  speaking  in  anything  which  ought  not  to  be.  .  .  . 
"War  regarded  as  the  state  in  which  the  vanity  of  temporal  goods 
and  things  is  taken  seriously — a  view  frequently  expounded  with 
impressive  eloquence — is  therefore  the  motive  by  which  the  idealiza- 
tion of  that  which  is  particular  receives  its  right  and  becomes  an 
actuality; — it  has  this  higher  significance,  in  that  through  war,  as 

^Expose  du  Gouvernement  prussien — (Euvres  pTiilosopMques,  tome  ii,  p.  216; 
CEuvres  de  Frederic  le  Grand,  tome  ix. 

^  Histoire  de  mon  temps,  tome  i,  p.  139;  (Euvres  de  FrMSric  le  Grand,  tome  ii. 

'  Griindlinien  der  Philosophie  des  Rechts  (von  Georg  Wilhelm  Friedrich 
Hegel;  Berlin,  1821);  neu  herausgegeben  von  Georg  Lasson;  (Leipzig,  Felix 
Meiner,  1911). 


xxxvi  INTRODUCTION 

I  have  elsewhere  expressed  it,  "the  moral  soundness  of  peoples  is 
preserved  in  their  indifference  toward  the  stability  of  the  finite  cer- 
tainties, even  as  the  movement  of  the  winds  preserves  the  ocean 
from  foulness,  into  which  a  perpetual  calm  would  place  it,  and  even 
as  a  lasting  or  even  a  perpetual  peace  would  corrupt  the  nations."  ^ 

In  peace  the  civic  life  develops  constantly;  all  the  divisions  of 
this  life  become  exclusive  and  at  length  society  becomes  stagnant; 
the  peculiarities  of  men  become  more  and  more  fixed  and  ossified. 
But  the  health  of  the  body  demands  the  unity  of  the  body,  and 
where  the  parts  thereof  become  hardened,  then  death  ensues.  Eternal 
peace  is  frequently  proclaimed  as  an  ideal  towards  which  mankind 
shall  steer  its  course.  Therefore,  Kant  proposed  the  alliances  of 
princes  which  should  settle  the  disputes  between  states,  and  the 
Holy  Alliance  probably  purposed  to  become  an  institution  of  this 
kind.  But  the  state  is  an  individual,  and  in  individuality  negation 
is  essentially  contained.  Hence,  if  a  number  of  states  form  them- 
selves into  a  family,  this  union,  as  an  individuality,  must  therefore 
create  an  opposition,  and  thus  beget  an  enemy.  Peoples  not  only 
issue  from  wars  as  strengthened  bodies,  but  nations  which  by  their 
nature  cannot  get  on  with  one  another,  secure  peace  within  their 
boundaries  by  means  of  wars  which  they  wage  abroad.  It  is  true 
that  property  is  made  insecure  through  war,  but  this  real  insecurity 
is  a  moving  action  which  is  necessary.  From  the  pulpits  we  hear 
much  about  the  insecurity,  the  vanity  and  instability  of  temporal 
things;  though  the  speakers  may  be  stirred  to  the  depths  of  their 
hearts  by  the  expression  of  such  thought,  they  nevertheless  think 
at  the  same  time  that  they  will  somehow  manage  to  hold  on  to  what 
they  have.  But  when  this  insecurity  comes  in  the  form  of  hussars 
with  glistening  sabers  and  is  made  manifest  in  vigorous  fashion, 
then  that  stirring  eloquence  which  prophesied  everything,  turns  its 
shafts  and  hurls  curses  at  the  conquerors.  In  spite  of  this,  wars 
are  being  waged  when  they  lie  in  the  nature  of  the  matter;  the  seeds 
sprout  again,  and  all  idle  talk  is  silenced  in  the  presence  of  the 
earnest  repetitions  of  history.^ 

States  are  not  private  persons,  but  in  themselves  completely  inde- 
pendent entities,  and,  hence,  their  relation  presents  itself  other  than 
one  merely  of  morality  and  of  private  right.  It  has  often  been 
desired  to  regard  states  from  the  viewpoint  of  private  right  and  of 
morality,  but  in  the  case  of  private  persons,  the  position  is  such  that 

'  Hegel,  Grundlinien  der  Philosophie  des  Recht,  p.  263. 
=■  Ibid.,  pp.  368-369. 


J 


INTRODUCTION  xxxvii 

they  have  over  them  a  tribunal  which  realizes  that  which  is  right. 
To  be  sure,  a  relation  between  states  should  also  be  in  itself  one 
of  right,  but  in  the  affairs  of  the  world  that  which  exists  in  itself, 
that  is  to  say,  right,  should  also  have  power.  But  as  there  is  no 
power  which  shall  decide  with  regard  to  the  state,  to  wit,  that  which 
in  itself  is  right,  and  which  shall  realize  this  decision,  the  question 
in  regard  to  this  matter,  therefore,  must  be  left  in  suspense  until 
such  time  as  that  power  shall  be  evolved.  The  relation  of  states 
to  one  another  is  one  of  independence;  they  stipulate  between  them- 
selves, but  at  the  same  time  these  stipulations  are  held  in  abey- 
ance.^ 

The  people  considered  as  the  state  are  the  spirit  in  its  substantial 
reasonableness  and  immediate  reality,  hence,  it  is  the  absolute  power 
on  earth ;  consequently,  each  state  in  relation  to  other  states  exercises 
sovereign  independence.^ 

Between  states  there  is  no  judge,  at  most  only  an  arbitrator  or 
mediator,  and  the  latter  only  as  an  accidental  thing,  that  is  to  say, 
chosen  according  to  particular  needs.  The  Kantian  concept  of  an 
eternal  peace  is  an  alliance  between  states  which  would  settle  every 
dispute,  and  which  as  a  power  recognized  by  each  individual  state 
would  adjust  every  misunderstanding  and  thus  make  impossible 
the  resort  to  arms  for  a  decision.  It  assumes  a  unanimous 
accord  of  the  states  which,  strengthened  by  moral,  religious,  or  other 
reasons  and  considerations,  rests,  nevertheless,  and  always,  on  the 
special  will  of  the  sovereign  and  therefore  is  liable  to  be  disturbed 
by  the  element  of  chance. 

So  far  as  the  particular  wills  can  come  to  no  agreement,  the 
dispute  between  states  can  therefore  be  settled  only  through  war. 
Because  of  the  widely  expanding  realm  and  the  multitudinous  rela- 
tions of  the  citizens  of  different  states  to  one  another,  offenses  occur 
easily  and  frequently.  Thus,  these  offenses  which  are  to  be  viewed 
as  a  definite  breach  of  a  treaty  or  as  a  violation  of  recognition  and 
honor,  cannot,  in  their  very  nature,  but  remain  indefinite,  for  a 
state  may  introduce  its  infinitude  and  honor  into  every  one  of  its 
separate  compartments.  It  is  more  inclined  to  this  irritability,  in 
proportion  as  a  powerful  individuality  feels  itself  impelled  by  a  long 
internal  rest  to  seek  and  find  abroad  an  object  on  which  to  exercise 
its  activity.^ 

The  European  nations  form  one  family  in  accordance  with  the 

*  Hegel,  Orundlinien  der  Phiiosophie  des  Rechts,  p.  370. 

» Ibid.,  p.  266.  » Ibid.,  p.  268. 


xxxviii  INTRODUCTION 

general  principle  of  their  legislation,  of  their  customs,  and  of  their 
civilization,  and  their  international  conduct  is  accordingly  being 
improved,  while  elsewhere  mutual  infliction  of  evils  is  the  rule.  The 
relation  of  states  to  other  states  is  inconstant;  there  is  no  judge  to 
settle  disputes.  The  higher  judge  is  alone  the  general  and  absolute 
spirit :  the  world  spirit/ 

As  states  are  particular,  there  is  manifested  in  their  relation  to 
one  another  a  shifting  play  of  internal  particularity  of  passions, 
interests,  aims,  talents,  virtues,  force,  wrong,  vice,  and  external  con- 
tingency on  the  very  largest  scale.  In  this  play  even  the  ethical 
whole, — national  independence, — is  exposed  to  chance.  The  spirit  of  a 
nation  is  an  existing  individual  having  in  particularity  its  objective 
actuality  and  self-consciousness.  Because  of  this  particularity  it  is 
limited.  The  destinies  and  deeds  of  states  in  their  connection  with 
one  another  are  the  visible  dialectic  of  the  finite  nature  of  these 
spirits.  Out  of  this  dialectic  the  universal  spirit,  the  spirit  of  the 
world,  the  unlimited  spirit,  produces  itself.  It  has  the  highest  right 
of  all,  and  exercises  its  right  upon  the  lower  spirits  in  world-history. 
The  history  of  the  world  is  the  world's  court  of  judgment. 

In  the  mutual  relations  of  the  states — because  in  these  relations 
they  appear  as  distinct  entities — there  manifests  itself  on  a  very 
large  scale,  the  extremely  shifting  play  of  the  respective  inner  par- 
ticularity of  passions,  of  interests,  of  aims,  of  talents  and  virtues,  of 
force,  wrong,  vice  and  external  adventitiousness, — a  play  wherein  the 
ethical  whole  and  the  independence  of  the  state  are  exposed  to  chance. 
Because  of  the  particularity  of  each  respective  national  spirit,  the 
principles  in  virtue  of  which,  as  an  existing  individual,  it  has  its 
objective  actuality  and  self -consciousness,  are  limited;  the  destinies 
and  acts  in  the  mutual  relations  of  the  states  constitute  the  visible 
dialectic  of  the  finitude  of  the  different  national  spirits;  from  this 
dialectic  issues  the  general  spirit,  the  spirit  of  tlie  world:  a  spirit 
unlimited  in  its  essence;  and  this  spirit  which  possesses  the  highest 
right,  applies  this  right  in  the  history  of  the  world,  wJiich  is  the 
tribunal  of  humanity.^ 

^  Hegel,  Grundlinien  der  Philosophie  des  Rechts,  p.  371. 
'Ibid.,  pp.  270-271. 


INTRODUCTION  xxxix 

(c)  Karl  von  Clausewitz  (1780-1831)  ^ 

We  shall  not,  by  way  of  preliminaries,  here  enter  into  a  ponderous 
definition  of  war  such  as  is  given  by  publicists,  but  we  shall  confine 
ourselves  to  the  element  of  war  itself,  which  is  a  duel.  War  is  nothing 
but  an  extended  duel.  If  we  would  represent  to  ourselves  as  a  unit 
the  numberless  duels  in  which  war  consists,  we  had  better  think  of 
two  wrestlers.  By  physical  force,  each  seeks  to  compel  the  other  to 
submit  to  his  will;  his  immediate  object  is  to  throw  his  opponent 
and  thereby  to  render  him  incapable  of  further  resistance. 

War,  therefore,  is  an  act  of  force  intended  to  compel  the  opponent 
to  fulfill  our  will. 

Force  arms  itself  with  the  inventions  of  the  arts  and  sciences  for 
the  purpose  of  contending  against  violence.  Under  the  term  of 
international  customs,  force  imposes  upon  itself  limits  imperceptible 
and  hardly  worth  mentioning,  without  essentially  impairing  its  power. 
Force,  that  is  to  say,  physical  force  (for  there  is  no  moral  force 
without  the  conception  of  state  and  law),  is  therefore  the  means; 
and  the  object  of  force  is  to  impose  our  will  upon  the  enemy.  To 
make  sure  of  attaining  this  object,  we  must  disarm  the  enemy,  and 
disarmament  is  the  real  aim  of  the  act  of  war.  It  takes  the  place 
of  the  object  and  somehow  puts  it  aside  as  something  not  pertaining 
to  war  itself. 

Now,  altruistic  souls  might  readily  believe  that  there  is  a  skillful 
method  for  disarming  and  throwing  the  opponent  without  occasioning 
overmuch  bloodshed,  and  that  this  is  the  true  tendency  of  the  art 
of  war.  Plausible  though  this  may  appear,  it  is  an  error  which  must 
be  done  away  with,  for  in  such  dangerous  things  as  war,  errors  which 
proceed  from  gentleness  of  spirit  are  the  worst.  As  the  use  of  physical 
force  to  the  utmost  extent  does  in  no  manner  exclude  the  cooperation 
of  the  intelligence,  it  follows  that  he  who  uses  this  force  unsparingly, 
without  regard  to  the  bloodshed  involved,  must  secure  a  superiority, 
if  his  opponent  uses  that  force  less  vigorously.  Thereby  he  imposes 
his  law  upon  his  opponent,  and  both  thus  resort  to  the  extremest 
measures  limited  only  by  the  immanent  countervailing  forces. 

The  matter  must,  therefore,  be  viewed  in  this  light,  and  it  is  a 
useless,  even  an  ill-judged  effort,  to  disregard  the  real  nature  of  the 
thing  because  its  horrors  are  repugnant.^ 

*  Tom  Kriege — Hinterlassenes  Werk  des  Oenerala  Karl  von  Clausewitz  (Ber- 
lin; Ferdinand  Dummler,  1832-1834;  3  vols.). 
==  Ihid.,  vol.  1,  pp.  3-5. 


xl  INTRODUCTION 

The  war  of  a  community — of  whole  peoples — and  especially  of 
civilized  peoples,  always  arises  from  a  political  condition,  and  it  is 
called  forth  only  by  a  political  motive.  It  is,  therefore,  a  political 
act.  .  .  .  Now,  if  we  bear  in  mind  that  war  arises  from  a  political 
object,  it  is  quite  natural,  therefore,  that  this  first  motive  which 
called  it  into  being,  must  remain  the  first  and  highest  consideration 
in  its  conduct.  Still,  the  political  object  is  no  despotic  lawgiver  on 
that  account ;  it  must  conform  to  the  nature  of  the  means,  and  while 
the  object  is  frequently  modified  by  the  latter,  still  it  must  always 
have  first  consideration.  Policy  is,  therefore,  interwoven  with  the 
entire  act  of  war  and  must  exercise  a  continuous  influence 
upon  it,  as  far  as  the  nature  of  the  forces  liberated  by  it  will 
permit. 

"We  see,  therefore,  that  war  is  not  merely  a  political  act,  but  a 
true  political  instrument,  a  continuation  of  political  intercourse,  a 
carrying  out  of  this  intercourse  by  other  means.  All  else  which 
remains  peculiar  to  war  relates  merely  to  the  peculiar  nature  of  its 
means  .  .  .  but,  however  powerfully  this  may  react  on  political 
views  in  particular  cases,  still  it  must  always  be  regarded  as  a  modi- 
fication of  them,  for  the  political  intention  is  the  object,  war  is  the 
means,  and  the  means  can  never  be  thought  of  without  including 
the  object.^ 

We  maintain  .  .  .  that  war  is  nothing  but  a  continuation  of 
political  intercourse  with  a  mixture  of  other  means.  We  say 
with  a  mixture  of  other  means  in  order  thereby  to  maintain  at  the 
same  time  that  this  political  intercourse  does  not  cease  through  the 
war  itself,  that  it  has  not  changed  into  something  entirely  different, 
but,  that  in  its  essence,  it  continues  to  exist,  in  whatever  form  the 
means  which  it  uses  may  appear,  and  that  the  chief  lines  along  which 
the  events  of  the  war  progress  and  to  which  they  are  bound,  are  the 
only  lines  along  which  the  war  is  prosecuted  until  peace  is  concluded. 
And  how  could  we  imagine  it  to  be  otherwise?  Have  the  political 
relations  of  different  nations  and  governments  ever  ceased  with  the 
cessation  of  diplomatic  notes?  Is  not  war  merely  another  kind  of 
writing  and  of  language  of  their  political  thoughts?  It  has,  to  be 
sure,  its  own  grammar  but  not  its  own  logic.^ 

Therefore,  once  more,  war  is  an  instrument  of  policy;  it  must 
necessarily  bear  its  character  and  measure  with  its  scale;  the  con- 
duct of  war  in  its  general  features,  is  therefore,  policy  itself,  which 

'  Clausewitz,  Vom  Kriege,  vol.  1,  pp.  26-28. 
*  Ibid.,  vol.  3,  p.  140. 


INTRODUCTION  xli 

the  pen  exchanges  for  the  sword,  but  which  has  not  on  that  account 
ceased  to  think  according  to  its  own  laws.^ 


(d)    Ernest  Moritz  Arndt  {1169-1860)' 

If  it  was  impossible  to  restore  the  union  between  Belgium  and 
Holland,  the  next  thing  was  a  union  of  the  land  with  Germany, 
an  ancient  right,  hence  an  old  and  new  duty,  and  at  the  same  time 
the  most  obvious  advantage  to  England.^  For  on  the  fields  of  Bel- 
gium Germany  and  England  will  of  necessity  be  everlastingly  at 
war  for  the  possession  of  the  Rhine  and  the  supremacy  of  the 
Channel.  .   .   .^ 

This  neutrality  belongs  to  the  many  expedients  of  the  London 
protocols.  It  was  the  apparent  desire  to  stop  the  turning  of  a  wheel 
which  threatened  much  destruction.  Belgium  can  never  be  that  which 
Switzerland  was:  a  land  well  situated  to  face  the  enemy  but  not  a 
land  for  battlefields;  and  it  is  even  doubtful  if  Switzerland  can  long 
continue  to  bask  in  its  earlier  good  fortune.  But  as  for  Belgium, 
the  granary  and  armory,  it  is  predestined  to  be  the  battlefield  in  the 
struggle  for  the  Meuse  and  the  Rhine.  I  ask  any  general  or  states- 
man who  has  seriously  considered  the  problems  of  war  and  politics, 
whether  Belgium  can  remain  neutral  in  a  European  war — that  is  to 
say,  can  be  respected  as  neutral  any  longer  than  may  appear  expedient 
to  the  power  which  feels  itself  possessed  of  the  best  advantages  for 
attack.  .  .  .° 

'  Clausewitz,  Vom  Kriege,  vol.  3,  p.  150. 

*  Schriften  fur  und  an  seine  liehen  Deutschen  (von  Ernst  Moritz  Arndt;  Leip- 
zig, 1845;   3  vols.). 

*  Arndt  here  had  in  mind  the  fear  in  England  that  France  would  acquire 
Belgium.  On  the  other  hand,  the  union  of  Belgium  with  Germany  would  have 
removed  this  fear,  and  at  the  same  time  taken  the  question  of  conflict  between 
England  and  Germany  out  of  the  realm  of  possibility;  for  as  long  as  that 
question  was  not  so  settled,  the  possibility  of  conflict  was  ever  present. 

*  Arndt,  Schriften  fiir  und  an  seine  lieben  Deutschen,  vol.  3,  p.  164. 

"  Ibid.,  p.  178.  Arndt's  vision  was  not  confined  solely  to  the  neutralized 
states.  He  knew  and  appreciated  England  and  ventured  a  prediction  which  has 
not  been  hailed  with  enthusiasm,  as  in  the  case  of  Belgium,  but  which  might  well 
have  been  pondered  by  his  countrymen,  for  in  the  same  volume  he  thus  writes  of 
England : 

"  That  which  you  will  certainly  have  on  your  hands  and  the  weight  of  which 
you  will  find  a  heavy  burden  to  bear,  if  you  nevertheless  itch  to  wage  war  and 
reap  misfortune,  listen  to  what  I  here  state:  old  England,  which  will  not 
Bit  quiet  for  a  moment,  will  in  the  first  place  be  roused  as  soon  as  you 
venture  to  reach  out  for  Antwerp,  Mainz,  and  Coblenz.  You  know  what 
that  means.     All  your  calculations  about  Ireland,  about  unrest  in  England  her- 


xlii  INTRODUCTION 

(e)    Frederick  William  IV,  King  of  Prussia  (1795-1861) 

All  written  constitutions  are  only  scraps  of  paper.^ 
The  plaintiff  states  that  he  is  absolute  monarch  of  the  kingdom 
of  Prussia,  and  as  king  thereof  is  the  sole  government  of  that  coun- 
try ;  that  he  is  unrestrained  by  any  constitution  or  law,  and  that  his 
will,  expressed  in  due  form,  is  the  only  law  of  that  country,  and  is 
the  only  legal  power  there  known  to  exist  as  law.  .   .   .  - 


(f)    Theodor  Mommsen  (1817-1903)^ 

When  from  the  miserable  monotony  of  political  selfishness  which 
fought  its  battles  in  the  Curia  and  in  the  streets  of  the  capital,  the 
course  of  history  again  turns  to  matters  w^hich  are  of  greater  impor- 
tance than  the  question  as  to  whether  or  not  the  first  monarch  of 
Rome  should  be  called  Gnaeus,  Gains,  or  Marcus,  we  may  well  be 
granted,  on  the  threshold  of  an  event  whose  effects  influence  even 
now  the  destinies  of  the  world,  to  look  about  us  for  a  moment  and 
to  characterize  the  connection  of  things  under  which  the  conquest 
of  the  present  France  by  the  Romans,  and  the  latter 's  first  contact 
with  the  inhabitants  of  Germany  and  of  Great  Britain  are  to  be 
viewed  in  their  bearing  upon  the  history  of  the  world. — By  virtue 
of  the  law  that  a  people  which  has  developed  into  a  state  gathers 
within  its  limits  all  neighbors  politically  immature  and  the  civilized 
people  absorbs  all  neighbors  who  are  in  intellectual  nonage — by 
virtue  of  this  law  which  is  as  generally  valid  and  as  much  a  law 
of  nature  as  the  law  of  gravitation,  the  Italian  nation,  the  only  one 
of  antiquity  which  was  able  to  combine  the  higher  political  develop- 
ment and  the  higher  civilization,  although  it  appropriated  the  latter 

self  will  go  for  naught.  That  great  people  has  such  a  thorough  appreciation 
for  real  freedom  and  lawfulness,  that  it  does  not,  as  you  and  your  ilk  are  wont 
to  do,  impatiently  fly  into  a  passion  at  sight  of  every  evil;  through  its  sensible 
and  equable  nature  it  has  learned  the  meaning  of  the  proverb,  time  brings 
counsel ;  and  even  though  some  local  troubles  should  break  out,  it  will  have 
them  put  down  by  its  own  citizens,  and  be  able  to  overwhelm  you  with  the 
fearful  power  of  its  fleets  and  armies."      {Hid.,  pp.  120-121.) 

'Speech  from  the  throne,  April  11,  1847.  In  L'lntermediare  des  Chereheurs 
et  Curieux  for  May  30,  1915,  at  p.  371,  the  reader  will  find  an  interesting 
comment,  under  the  caption  "  Scraps  of  Paper,"  upon  this  famous  statement  of 
Frederick   William   IV. 

^  King  of  Prussia,  Plaintiff  in  Error,  v.  Kuepper's  Administrator,  Defendant  in 
Error,  22  Missouri  Reports   (1856),  p.  550. 

'  Romische  Geschichte,  von  Theodor  Mommsen  (Berlin;  VVeidmanische  Buch- 
handlung,  1889),  5  vols.;  vol.  4  not  published. 


INTRODUCTION  xUii 

in  only  an  imperfect  and  external  manner,  the  Italian  nation  was 
entitled  to  reduce  to  its  subjection  the  Greek  states  of  the  East 
which  were  on  the  decline,  and  by  means  and  through  its  settlers 
to  crowd  out  the  peoples  of  a  lower  grade  of  culture  in  the  West, 
such  as  the  Libyans,  Iberians,  Kelts,  and  Germans,  even  as  England 
has  with  equal  right,  in  Asia,  subjected  to  its  authority  a  civiliza- 
tion of  equal  rank,  but  politically  impotent,  and  in  America  and 
Australia  characterized  and  ennobled,  and  still  continues  to  char- 
acterize and  ennoble  extensive  barbarian  countries  v/ith  the  stamp 
of  its  nationality.  The  Roman  aristocracy  had  fulfilled  the  pre- 
liminary condition  of  this  task :  the  union  of  Italy ;  however,  it  never 
solved  the  task  itself;  it  regarded  the  extra-Italian  conquests  either 
as  a  necessary  evil  or  as  a  fiscal  possession  without  the  pale  of  the 
state.  It  is  the  imperishable  glory  of  the  Roman  democracy  or 
monarchy — for  the  two  coincide — to  have  correctly  understood  and 
vigorously  realized  that  highest  destination.' 


(g)    Prince  Otto  von  Bismarck  ( 1815-1898) ^ 

Prussia  must  brace  herself  up  for  the  fitter  moment  which  has 
already  more  than  once  been  missed ;  Prussia 's  borders  are  not  favor- 
able to  the  development  of  a  healthy  state.  Not  by  speechifying  and 
majorities  can  the  great  questions  of  the  time  be  decided — that  was 
the  mistake  of  1848  and  1849 — but  by  blood  and  iron.* 

On  July  12  [1870],  I  decided  to  leave  Varzin  for  Ems  to  persuade 
His  Majesty  to  convoke  the  Reichstag  for  the  purpose  of  mobilization. 
As  I  passed  through  Wussow,  my  friend  Mulert,  the  old  preacher, 
stood  before  the  door  of  the  parsonage  and  greeted  me  in  friendly 
manner;  my  answer  from  the  open  carriage  was  a  thrust  in  quart 
and  tierce  in  the  air,  and  he  understood  that  I  believed  I  was  going 
to  war.  When  I  drove  into  the  court  of  my  Berlin  home,  and  even 
before  I  had  left  the  carriage,  I  received  telegrams  informing  me 
that  the  king  continued  to  negotiate  with  Benedetti,  even  after  the 
French  threats  and  offenses  in  parliament  and  in  the  press,  instead 

^  Mommsen,  Romische  OescMchte,  vol.  3,  pp.  220-221. 

2  Quotations  from  Bismarck,  with  the  exception  of  the  first,  are  taken  from 
Oedanken  und  Erinnerungen,  von  Otto  Fiirst  von  Bismarck  (New  York  and 
Stuttgart,   I.   G.,   Gotta'sche   Buchhandlung  Nachfolger,    1898). 

*  In  Military  Committee  of  Prussian  Chamber  of  Deputies  [1862].  Prince 
Bismarck.  By  Charles  Lowe.  (New  York  and  London;  Cassell  &  Co.,  Ltd.),  vol. 
1,  p.  290. 


xliv  INTRODUCTION 

of  referring  him  with  calm  reserve  to  his  ministers.  During  the 
meal  at  which  Moltke  and  Roon  were  present,  announcement  arrived 
from  the  ambassador  in  Paris  that  the  Hohenzollern  prince  had 
renounced  his  candidature  in  order  to  prevent  the  war  with  which 
France  had  threatened  us.  My  first  thought  was  to  sever  my  con- 
nection with  the  service,  because,  after  all  the  offensive  provocations 
which  had  gone  before.  I  perceived  in  this  extorted  yielding  a  humilia- 
tion of  Germany  for  which  I  did  not  wish  to  be  held  officially 
responsible.' 

Having  decided  to  resign  in  spite  of  the  remonstrances  addressed 
to  me  in  the  matter  by  Roon,  I  invited  him  and  Moltke  to  dine  with 
me  alone  on  the  13th,  when  I  communicated  to  them  my  views  and 
intentions.  Both  were  greatly  depressed  and  indirectly  reproached 
me  for  selfishly  availing  myself  of  my  greater  facility,  as  compared 
with  theirs,  for  leaving  the  service.  I  told  them  that  I  could  not 
sacrifice  my  sense  of  honor  to  politics,  and  that  both  of  them,  as 
professional  soldiers,  unable  to  decide  because  not  free  to  do  so, 
need  not  take  the  same  view.  During  the  conversation  announce- 
ment was  made  to  me  that  a  telegram  from  Ems,  in  cipher  (if  I 
remember  correctly)  of  about  200  groups,  signed  by  Privy  Councilor 
Abeken,  was  being  translated.  When  the  copy  had  been  handed  to 
me,  it  showed  that  Abeken  had  drafted  and  signed  the  telegram  at 
His  Majesty's  command.  I  read  it  to  my  guests,  whose  depression 
became  so  great  that  they  turned  away  from  food  and  drink.  Upon 
reexamining  the  document  I  gave  my  particular  attention  to  the 
authorization  of  His  Majesty,  including  an  order  immediately  to 
communicate  Benedetti's  new  demand  and  its  rejection  both  to  our 
ambassadors  and  to  the  press.  I  put  a  few  questions  to  Moltke  with 
regard  to  the  measure  of  his  confidence  in  the  state  of  our  arma- 
ments, especially  as  to  the  time  they  might  yet  require  in  order 
to  meet  the  danger  of  war,  which  had  so  suddenly  arisen.  He 
answered  that  if  there  was  to  be  war,  he  would  expect  no  advantage 
to  us  by  deferring  its  outbreak;  even  if  we  should  not  be  strong 
enough  immediately  to  protect  all  the  territory  on  the  left  bank 
of  the  Rhine  against  a  French  invasion,  our  preparations  would 
soon  overtake  the  French,  while  at  a  later  period  this  advantage 
would  decrease;  on  the  whole,  he  regarded  an  immediate  outbreak 
of  war  as  more  advantageous  for  us,  than  delay. 

The  dispatch  handed  in  at  Ems  on  July  13,  1870,  at  3:50  p.  m., 
and  received  at  Berlin  at  6:09,  read,  when  deciphered,  as  follows: 

'  Bismarck,    Oedanken   und  Erinnerungen,   p.   434. 


INTRODUCTION  xlv 

His  Majesty  writes  to  me:  ''Count  Benedetti  joined  me  on 
the  promenade,  finally  to  request  me  in  a  very  urgent  manner, 
to  authorize  him  to  telegraph  forthwith  that  I  pledge  myself 
for  all  future  time,  never  again  to  give  my  consent  if  the  Hohen- 
zollerns  should  again  present  their  candidature.  I  declined 
somewhat  brusquely  to  do  so  for  the  reason  that  I  neither  could 
nor  would  enter  into  engagements  of  this  kind  a  tout  jamais. 
I  told  him,  of  course,  that  I  had  received  no  news  as  yet,  and 
as  he  would  receive  earlier  news  from  Paris  and  Madrid  than 
myself,  he  could  readily  see  that  my  Government  again  had  no 
hand  in  the  matter."  His  Majesty  has  since  received  a  letter 
from  the  Prince.  As  His  Majesty  had  told  Count  Benedetti 
that  he  was  expecting  news  from  the  Prince,  His  All-Highest 
Majesty  had  decided,  in  reference  to  the  above  presumption, 
upon  the  proposal  of  Count  Eulenburg  and  myself,  not  to  receive 
Count  Benedetti  again,  but  to  have  him  informed  through  an 
adjutant:  that  His  Majesty  had  now  received  from  the  Prince 
confirmation  of  the  news  which  Benedetti  had  already  received 
from  Paris,  and  that  he  had  nothing  further  to  communicate 
to  the  Ambassador.  His  Majesty  requests  the  opinion  of  Your 
Excellency  as  to  whether  Benedetti 's  new  demand  and  its  rejec- 
tion should  not  be  communicated  forthwith  to  our  Ambassador 
and  to  the  press.' 

All  these  considerations,  conscious  and  unconscious,  strengthened 
my  feeling  that  the  war  could  be  avoided  only  to  the  detriment  of  our 
Prussian  honor  and  of  the  national  confidence  in  it. 

Under  this  conviction  I  made  use  of  the  royal  authorization  sent 
to  me  by  Abeken,  to  publish  the  contents  of  the  telegram,  and  in  the 
presence  of  my  two  table  guests  I  reduced  the  telegram  through 
omissions,  but  without  adding  or  changing  one  word,  so  that  it  read 
as  follows: 

"After  the  news  of  the  renunciation  of  the  hereditary  prince  of 
Hohenzollern  had  been  officially  communicated  to  the  Imperial 
French  Government  by  the  Royal  Spanish  Government,  the  French 
Ambassador  at  Ems  further  demanded  of  His  Majesty,  the  King, 
that  he  would  authorize  him  to  telegraph  to  Paris  that  His  Majesty 
the  King  pledged  himself  for  all  future  time  never  again  to  give  his 
consent  if  the  Hohenzollerns  should  again  present  their  candidature. 
His  Majesty  the  King  thereupon  declined  to  receive  the  French 
Ambassador  again  and  had  him  informed  through  the  adjutant  on 
duty,  that  His  Majesty  had  nothing  further  to  communicate  to  the 
Ambassador."     The  difference  in  the  effect  of  the  condensed  text 

'■  Bismarck,  Oedanken  und  Erinnerungen,  pp.  436-437. 


xlvi  INTRODUCTION 

of  the  Ems  dispatch  as  compared  with  that  produced  by  the  original 
was  not  the  result  of  stronger  words,  but  of  the  form  which  made 
this  announcement  appear  as  final,  while  the  wording  of  Abeken 
would  only  have  appeared  as  a  fragment  of  negotiations  still  pending 
and  to  be  continued  at  Berlin. 

After  I  had  read  the  condensed  text  to  my  two  guests,  Moltke 
remarked:  "In  this  form,  it  has  a  different  ring;  it  sounded  before 
like  a  parley;  now  it  sounds  like  a  flourish  in  answer  to  a  challenge." 
I  went  into  details:  "If  in  execution  of  the  All-Highest 's  order  I 
forthwith  communicate  this  text  which  contains  no  alterations  in 
and  no  additions  to  the  telegram,  not  only  to  the  newspapers,  but 
as  well  by  telegraph,  to  all  our  embassies,  it  will  be  known  in  Paris 
before  midnight,  and  there,  not  only  on  account  of  its  contents,  but 
also  because  of  the  manner  of  its  distribution,  it  will  have  the  effect 
of  a  red  rag  upon  a  Gallic  bull.  We  must  fight  if  we  do  not  want 
to  appear  in  the  role  of  the  vanquished  without  a  battle.  Success 
depends  essentially  upon  the  impression  which  the  origin  of  the  war 
produces  upon  ourselves  and  others;  it  is  important  that  we  should 
be  the  party  attacked,  and  Gallic  conceit  and  excitableness  will  make  of 
us  the  party  attacked  if  through  a  European-wide  publicity  we  an- 
nounce, so  far  as  we  can  do  so  without  using  the  speaking-tube  of  the 
Reichstag,  that  we  fearlessly  meet  the  public  threats  of  France.' 

The  durability  of  all  treaties  between  great  states  is  conditional 
as  soon  as  it  is  put  to  the  test  "in  the  struggle  for  existence."  No 
great  nation  can  ever  be  induced  to  sacrifice  its  existence  on  the 
altar  of  faithfulness  to  contract,  if  it  is  compelled  to  choose  between 
the  two.  The  ultra  posse  nemo  ohligatur  cannot  be  made  ineffective 
through  any  contractual  clause;  nor  can  any  treaty  guarantee  the 
measure  of  zeal  and  force  by  which  the  obligation  is  fulfilled  when 
the  private  interest  of  him  who  is  to  fulfill  the  provisions  of  the 
treaty  no  longer  reinforces  the  text  to  which  he  put  his  signature, 
and  its  earlier  interpretation.  Therefore,  if  changes  occur  in  the 
currents  of  European  politics,  such  as  would  make  an  anti-German 
policy  appear  salus  publica  for  Austria-Hungary,  self-immolation  for 
the  sake  of  faithfulness  to  treaty  could  be  as  little  expected  as  was 
gratitude  in  the  Crimean  War,  though  the  obligation  was  perhaps 
stronger  than  the  provisions  recorded  on  the  parchment  of  a  political 
treaty.^ 

International    policy    is    a    fluid    element    which    under    certain 

^  Bismarck,  Qedanken  und  Erinnerungen,  pp.  439-440. 
'  Ibid.,  p.  588. 


INTRODUCTION  xlvii 

circumstances  becomes  a  solid  for  the  time  being,  but  in  atmos- 
pheric changes  reverts  to  its  original  state.  In  political  treaties 
which  require  the  fulfillment  of  certain  obligations,  the  clausula  rehus 
sic  stantibus  tacitly  is  accepted.  The  Triple  Alliance  is  a  strategic 
position  which,  in  view  of  the  perils  threatening  at  the  time  of  its 
conclusion,  was  advisable,  and  feasible  under  the  then  prevailing 
conditions.  .    .    .^ 

The  Triple  Alliance  which  I  originally  sought  to  bring  about 
after  the  Frankfort  Peace  and  about  which  I  had  already  sounded 
Vienna  and  St.  Petersburg  in  September,  1870,  from  Meaux,  was 
an  alliance  of  the  three  emperors  with  the  further  thought  of  per- 
suading monarchical  Italy  to  join  it,  and  directed  to  the  struggle 
which,  I  feared  in  some  form  or  other  confronted  the  two  European 
tendencies,  which  Napoleon  called  the  Republican  and  the  Cossack, 
and  which,  according  to  present  concepts,  I  would  designate  on  the 
one  hand  as  the  system  of  organization  on  a  monarchical  basis,  and 
on  the  other,  as  the  social  republic  to  the  level  of  which,  either  gradu- 
ally or  by  leaps,  the  anti-monarchical  development  usually  sinks, 
until  the  unbearable  conditions  created  under  its  sway  dispose  the 
disappointed  people  to  return,  through  violence,  to  monarchical  insti- 
tutions of  a  Csesarean  form,  .  .  .  Since  1871  I  have  sought  for 
immediate  security  against  those  struggles  in  the  alliance  of  the 
three  emperors  and  in  the  effort  to  secure  a  firm  support  in  that 
alliance  for  the  monarchical  principle  in  Italy,   .    .    .^ 

Treaties  are  scraps  of  paper.  All  depends  upon  the  manner  of 
turning  them  to  account.  Even  an  excellent  weapon,  in  inexperienced 
hands,  may  cause  more  damage  than  good.  .   .   .  ^ 


(h)    Count  HelmutJi  von  Moltke  (1800-1891)  * 

You  have  been  kind  enough  to  transmit  to  me  the  Manual  which 
the  Institute  of  International  Law  has  published,  and  you  wish  my 
approval  of  the  work. 

In  the  first  place,  I  fully  honor  the  humane  endeavor  to  alleviate 
the  sufferings  which  war  carries  in  its  train. 

Eternal  peace  is  a  dream,  not  even  a  beautiful  dream;  war  is  a 

'  Bismarck,  Gedanken  und  Erinnerung,  pp.  596-597. 
^Ihid.,  pp.  569-570. 

•  Chiala,  Pagine  di  storia  contemporanea   (Torino,  1898),  vol.  3,  p.  498. 

*  Schriften  und  Denktciirdigkeiten  des  Oeneral-Feldmarschalls  Orafen  Helmuth 
von  Moltke  (Berlin,  1892),  8  vols,  in  7. 


xlviii  INTRODUCTION 

part  of  God's  cosmic  system.  Man's  noblest  virtues:  courage  and 
self-denial,  loyalty  to  duty,  and  self-sacrifice  even  to  the  staking  of 
his  life,  are  developed  through  war.  Without  war  the  world  would 
sink  into  materialism,  I  perfectly  agree  with  that  sentence  of  the 
preface  which  announces  that  advancing  civilization  will  also  improve 
warfare,  but  I  go  farther  in  believing  that  it  alone,  and  not  a  codi- 
fied military  law,  will  be  able  to  attain  this  goal. 

Every  law  requires  an  authority  to  supervise  and  enforce  its 
execution,  and  there  is  no  such  authority  with  regard  to  the  observ- 
ance of  international  agreements.  What  third  state  will  take  up 
arms  because  of  tw^o  belligerents,  one — or  both — have  violated  the 
lois  de  la  guerref  For  such  eases,  there  is  no  judge  on  earth.  Success 
can  only  be  expected  from  the  religious  and  moral  education  of  the 
individuals,  from  the  sense  of  honor  and  from  the  sense  of  justice 
of  the  leaders  who  are  a  law  unto  themselves  and  act  accordingly, 
in  so  far  as  the  abnormal  conditions  of  the  war  permit. 

It  cannot  be  denied  that  humaneness  in  the  conduct  of  war  has 
really  kept  pace  with  the  general  progress  of  morality. 

One  need  but  compare  the  lawlessness  of  the  Thirty  Years'  War 
with  the  wars  of  modern  times. 

An  important  thing  for  the  realization  of  the  desired  goal  has 
been  found  in  our  day  in  the  introduction  of  a  universal  military 
service  which  has  incorporated  the  educated  classes  in  the  armies. 
To  be  sure,  the  rough  and  violent  elements  have  also  remained  in 
them,  but,  they  are  not,  as  in  former  times,  the  only  elements  con- 
stituting the  armies. 

Two  other  effectual  means  remain  in  the  hands  of  the  govern- 
ments, in  order  to  prevent  the  worst  excesses.  On  the  one  hand, 
the  strict  discipline  introduced  and  maintained  in  the  armies  even 
in  times  of  peace,  and  on  the  other,  the  administrative  foresight 
for  the  maintenance  of  the  troops  in  the  field. 

Without  this  foresight,  discipline  can  be  maintained  in  only  a 
limited  degree.  The  soldier  who  is  exposed  to  suffering  and  priva- 
tion, to  exertion  and  danger,  cannot  be  satisfied  en  proportion  avec 
les  ressources  du  pays;  he  must  seize  everything  that  is  necessary  to 
his  existence.     We  cannot  demand  the  impossible  of  him. 

The  greatest  good  in  war  is  its  quick  termination,  and  to  this 
end  all  means,  not  directly  reprehensible,  must  be  used.  I  can 
in  no  manner  agree  with  the  Declaration  de  St.  Petershourg  that  the 
"weakening  of  the  hostile  fighting  power,  etc.,"  is  the  only  justified 
proceeding  in  the  war.     No;  all  auxiliary  resources  of  the  hostile 


INTRODUCTION  xlix 

government  must  be  seized:  its  finances,  railroads,  necessaries  of 
life,  and  even  its  prestige. 

With  this  energy,  and  yet  with  more  moderation  than  ever  before, 
the  last  war  against  France  was  waged.  After  two  months  of  fighting 
the  campaign  was  decided,  and  only  when  a  revolutionary  govern- 
ment continued  it  for  four  months  to  the  detriment  of  its  own  coun- 
try, did  the  battles  assume  an  embittered  character. 

I  readily  acknowledge  that  the  Manual  defines  in  clear  and  short 
sentences,  in  a  higher  degree  than  has  been  the  case  in  former 
attempts,  the  necessities  of  war.  But  even  the  recognition  by  govern- 
ments of  the  rules  which  it  lays  down,  does  not  insure  their  execution. 
It  has  long  since  been  a  universally  recognized  usage  of  war  not  to 
fire  at  the  bearer  of  a  flag  of  truce,  and  yet  this  usage  was  repeat- 
edly violated  during  the  last  campaign.  No  paragraph  which  has 
been  learned  by  heart  will  convince  the  soldier  that  the  unorganized 
population  which  (spontanement,  that  is  to  say,  of  its  own  impulse) 
takes  up  arms  and  from  which  he  is  not  safe  a  moment  by  day 
or  night,  is  not  a  regular  enemy  (§§2  and  43).  Specific  demands 
of  the  Mammal  are,  to  my  mind,  impossible  in  practice,  for  instance, 
the  identifying  of  the  fallen  after  a  great  battle.  Other  demands 
of  the  Manual  would  give  rise  to  serious  doubt  if  the  insertion  of 
"Lorsque  les  circonstances  le  perinettent,  s'il  se  pent,  si  possible, 
s'il-y-a  necessite,  etc.,"  did  not  give  them  an  elasticity  without  which 
the  bitter  earnestness  of  reality  would  break  the  chains  which  they 
impose. 

In  war  everything  must  be  looked  at  from  its  own  distinct  point 
of  view;  I  believe  that  only  those  paragraphs  of  the  Manual  which 
refer  essentially  to  the  leaders,  can  become  effective.  The  same  is 
true  of  those  parts  of  the  Manual  dealing  with  the  wounded,  the 
sick,  the  physicians  and  the  sanitary  materials.  General  recognition 
of  these  principles,  as  well  as  those  in  reference  to  the  treatment 
of  the  prisoners  would  mark  real  progress  towards  the  aim  which 
the  institute  of  international  law  is  striving  for,  with  such  praise- 
worthy perseverance.    .     .     ,' 

'■  Moltke,  Gesammelte  Schriften  und  Denktoiirdigkeiten,  vol.  5,  pp.  194-197. 
This  was  in  reply  to  a  letter  from  Professor  Bluntschli,  who,  under  date  of 
November  19,  1880,  wrote  as  follows: 

Herewith,  the  undersigned  has  the  honor,  respectfully  to  transmit  some 
copies  of  the  Manual  Les  Lois  de  la  Guerre  sur  terre,  prepared  and  pub- 
lished by  the  Institute  of  International  Law,  in  conformity  with  the  Brussels 
Declaration,  with  the  instructions  recently  issued  by  some  European  states 
and  with  scientific  literature.  The  Commission  has  sincerely  endeavored 
to  harmonize  the  practices  and  the  interests  of  the  army  with  the  necessary 


INTRODUCTION 


(i)    Adolf  Lasson  (1832-)' 

We,  especially  in  Prussia,  are  still  under  the  immediate  impres- 
sion of  events  which,  only  two  years  ago,  passed  before  our  very 
eyes,  and  whose  world-transforming  importance  is  every  day  more 
and  more  revealed  to  the  intelligent  mind.  At  the  same  time  every- 
one realizes  the  possibility  that  the  great  war  movement  has  not  even 
been  brought  to  a  momentary  conclusion,  and  that  the  successes  so 
suddenly  obtained  must  first  be  secured  through  new  tests.  The  iron 
age  demands  an  iron  generation.    .    .    .^ 

If  war  is  to  be  done  away  with,  all  states  must  in  that  case  submit 
to  the  judgment  of  a  higher  court,  that  is  to  say,  they  must  renounce 
being  states.  This  would  mark  the  end  of  the  plurality  of  states; 
the  universal  state  would  arise  and  the  whole  of  mankind,  at  least  the 
civilized  part  of  mankind,  would  be  subject  to  it.  Actual  force 
would  be  resorted  to  only  against  the  savages  who  might  perhaps  not 
be  forced  into  the  paths  of  civilization.  Removal  of  war  means 
therefore  abrogation  of  all  states  and  transformation  of  the  whole 
of  civilized  mankind  into  a  single  political  being.    .    .    . 

Even  as  the  necessity  of  doing  away  with  war  means  the  doing 
away  with  the  plurality  of  the  states,  even  so  does  the  continuance  of 
the  plurality  of  the  states  mean  that  war  is  unavoidable.  For  a 
state  cannot  exist  without  a  supreme  will  which  wills  for  the  entirety 
of  the  state ;  but  between  two  wills  of  which  each  wills  for  itself, 
the  conflict  is  ever  imaginable  and  possible,  and  as  long  as  two  states 
differ  from  one  another,  that  is  to  say,  as  long  as  they  have  no  com- 
mon law,  no  common  judge,  and  are  subject  to  no  common  com- 
pulsion, there  is  no  other  means  to  settle  the  conflict,  except  by  mutual 
resort  to  force,  that  is  to  say,  to  war.    ..." 

Force  per  se  may  be  regarded  as  absolutely  justified  whenever 
recalcitrant  arbitrariness  will  not  submit  to  law;  but  force,  before 

principles  of  right  and  the  needs  of  the  civilian  world,  and  to  state  the  laws 
of  warfare  in  a  form  fundamentally  correct,  and  comprehensible  to  the  plain 
mind  of  any  layman  and  of  the  ordinary  soldier. 

The  undersigned,  and  especially  the  reporter  and  the  other  members  of 
the  Institute  of  International  Law,  would  feel  much  requited  and  very 
pleased,  if  the  work,  intended  for  practical  use,  were  to  meet  with  the 
approval  of  your  Excellency.  (Moltke,  i^chriften  und  Denkimrdigkeiten,  p. 
193.) 

^  Das  Culturideal  und  der  Krieg,  von  Adolf  Lasson  (Berlin,  1868),  and 
Princip  und  Zukunft  des  Volkerrechts,  von  Adolf  Lasson   (Berlin,  1871). 

2  Lasson,  Das  Culturideal  und  der  Krieg,  p.  1. 

•Ibid.,  p.  5. 


INTRODUCTION  li 

the  decision  upon  tlie  legal  question  involved,  appears  thoroughly 
appropriate  to  such  a  case ;  and  it  does  indeed  seem  unreasonable 
that  he  exercise  the  force  which  law  lays  claim  upon  and  which  is 
disputed  by  the  opponent.  The  real  question  is  as  to  whether  there 
can  be  a  law  in  regard  to  the  relations  between  states,  as  there  is  in 
regard  to  the  relations  of  the  nationals  of  one  and  the  same  state? 
The  question  seems  a  quite  different  one ;  .  .  .  for  there  is  no  inter- 
national law,    .    .    . 

Right  exists  by  the  limitation  of  the  activity  of  the  will  through 
law ;  it  is  through  the  law  that  that  which  is  right  is  judged  and  the 
exercise  of  right  is  secured  through  force.  Force  is  the  characteristic 
feature  of  right.  In  international  intercourse,  in  consequence,  there 
are  and  there  can  be  no  laws.  Supposing,  however,  that  there  were 
laws,  the  transgressor  would  then  have  to  be  subject  to  the  superior 
force;  one  to  whom  such  force  were  applied,  he  would  have 
to  be  extremely  weak  and  incapable  of  resistance.  In  that  case  he 
would  be  living  only  by  the  grace  of  the  mightier;  the  state  would 
not  be  sufficient  unto  itself  and  thus  would  be  no  state.  A  state 
exists  only  where  there  is  present  the  unconditional  possibility  of 
resistance  to  the  consciousness  of  capacity  to  resist.  A  so-called  small 
state  is  no  state  at  all,  but  a  community  that  is  suffered  to  exist, 
which  in  risible  fashion  pretends  to  be  a  state,  but  without  being  able 
to  exercise  the  most  essential  function  of  the  state,  without  being  able 
to  ward  off  force  through  force.  ...  A  minor  state  resting  its 
existence  upon  the  hope  that  for  fear  of  another  state  it  will  not  be 
attacked,  is  no  state  at  all,  but  the  vassal  of  the  one  which  is  to 
protect  it,  on  whose  generosity  its  existence  depends.  Between  states 
there  can  be  no  thought  of  superior  force,  and  hence  there  can  be 
no  thought  of  law  and  right.  .  .  .  Between  states  there  can  be  but 
one  form  of  right:  the  right  of  the  strong;  and  because,  as  long  as 
there  are  states,  there  will  be  conflicts  between  states  which  .must 
be  decided,  it  is  therefore  conformable  to  reason  that  war  will  be 
waged  between  states.    ..." 

There  is  no  right  where  there  is  no  law,  no  judge,  no  superior 
compelling  force.  All  these  matters  in  the  relations  between  states, 
are  not  open  to  discussion;  hence,  the  relations  of  states  to  one 
another  are  not  based  upon  right.    .    .    . 

States  have  absolutely  no  mutual  duties,  because  as  between  them, 
there  is  no  law  or  right.  .  .  .  There  is  no  commandment  of  right 
to  observe  political  treaties ;  but  to  observe  political  treaties  is  a  eom- 

^  Lasson,  Das  Culturideal  und  der  Krieg,  p.  7. 


lii  INTRODUCTION 

mandment  of  circumspect  sagacity.  Whenever  a  state  breaks  a  treaty, 
it  must  expect  to  have  each  of  its  treaties  broken  in  turn ;  any  state 
resorting  to  deceit  must  expect  everywhere  to  be  repaid  in  kind. 
Infraction  of  the  right  by  force  is  a  crime  in  civil  life ;  a  state  can 
commit  no  crime.  The  greatest  mistake  a  state  can  be  guilty  of  is 
lack  of  circumspect  sagacity.  .    .   . 

The  state  breaking  a  treaty  enters  into  a  state  of  war;  it  acts 
unwisely  whenever  it  challenges  a  decision  through  the  force  of  arms, 
unless  it  is  sure  of  its  superior  force.  If  it  has  this  force,  then  it 
may  do  whatever  it  pleases;  for  between  states  the  right  of  the 
strong  alone  prevails.    .     .     . 

If  the  state  is  to  endure,  its  first  task  is  to  husband  its  force; 
for  the  weaker  is,  in  spite  of  any  and  all  treaties,  the  prey  of  the 
stronger,  whenever  the  latter  wills  to  and  can  prey  upon  it. 

Because  every  state  seeks  only  its  own  advantage,  war  is  there- 
fore the  natural  condition  between  states.  But  it  is  also  this  advantage 
which  induces  the  state  not  to  live  in  constant  warfare.  As  long  as 
a  state  is  a  real  state,  no  other  state  can  attack  it  without  at  the 
same  time  staking  its  own  existence.  Success  in  war  cannot  be  mathe- 
matically established.  The  reasonable  state  risks  its  existence  only 
in  ease  of  extreme  necessity.    ..." 

Every  civilized  state  is  a  peace-loving  state ;  but  it  can,  of  course, 
not  escape  the  necessity  of  war.  Riches  that  have  been  amassed  by 
a  state  rouse  envy  on  the  part  of  other  states;  they  confer  superior 
influence  and  hence,  awaken  the  natural  effort  of  every  other  state 
not  to  be  obscured,  not  to  lose  in  position  of  power.  The  further 
civilization  progresses,  and  the  success  of  the  laboring  masses  has 
been  realized,  the  more  it  becomes  necessary  to  insure  real  protection 
of  it  through  strong  military  defensive  force  against  foreign  encroach- 
ments, against  hatred  and  envy  which,  to  be  sure,  may  have  sprung 
not  from  certain  viewpoints  of  civilization,  but  from  quite  different 
ones,  from  political  causes,  but  which,  nevertheless,  first  and  mainly, 
with  all  the  might  and  all  the  fury  of  the  attack,  are  directed  against 
civilization.  .    .    .^ 

The  will  of  the  state  is  bound  and  restricted  by  the  will  of  some 
other  state.  This  condition  predicates  the  conflict,  and  the  ability 
militarily  to  meet  attack  and  offer  defense  becomes  the  fundamental 
condition  for  the  existence  of  the  state.  For  it  is  untenable  for  one 
to  argue  for  a  legal  organization,  for  a  court  and  force  whereby  to 

'  Lasson,  Das  Culturideal  und  der  Krieg,  pp.  8-9. 
^Ibid.,  p.  10. 


INTRODUCTION  liii 

control  the  relations  between  states.  Between  states  as  intelligent 
beings  the  conflict  can  be  decided  only  through  actual  force.  War  is 
therefore  included  in  the  concept  of  the  word  "state."    .    .    . 

Without  the  state,  man  cannot  be  man ;  without  war,  the  state 
would  not  be  a  state ;  hence  war  is  included  in  the  concept  of  the  word 
"mankind,"  not  simply  as  mankind  was  or  now  is,  but  as  it  will 
be  ever  more.  Once  the  fire  ceases  to  burn,  once  the  light  ceases 
to  illumine  and  matter  ceases  to  move,  then  war  will  also  cease.    .    .    . 

War  necessarily  completes  all  the  other  institutions.  .  .  .  The 
state  when  at  peace  is  no  real  state;  it  is  only  when  in  war  that  the 
state  reveals  its  complete  significance.    .     .    . 

"Law  is  the  friend  of  the  weak";  but  the  strong  also  becomes 
weak  when  it  is  deprived  of  the  burden  to  put  its  strength  to  the 
test.  .  .  .  Peace  organization  and  all  regulations  to  curb  impulse 
are  the  tomb  of  courage.  Peace  is  intended  to  generate  a  busy, 
patient,  and  an  amiable  race ;  .  .  .  war,  on  the  other  hand,  rouses 
the  slumbering  demon  in  the  breast  of  man:  great  deeds  are  then 
accomplished ;  the  eye  feasts  on  brave  feats ;  the  ruder  and  the  highly 
developed  qualities  of  man  perform  in  the  service  of  the  highest 
purposes;    ..." 

War  demands  all  there  is  in  man.  Contempt  for  death  is  the 
first  proof  of  the  right  appreciation  of  life.    .    .    . 

In  the  state  everything  must  be  done  to  meet  the  possibility  of 
war,  everything  must  be  appointed  in  such  manner  that  in  war  there 
shall  be  the  greatest  possible  fullness  of  strength.  .  .  .  There  is 
no  greater  drama  than  to  see  a  people  who  wage  a  war  in  a  manner 
worthy  of  the  war.    .    .    . 

If  the  state  is  capable  of  existing,  it  must  train  its  citizens  or  a 
part  of  its  citizens  to  be  able  to  bear  arms,  that  is  to  say,  the  state 
must  rear  them  for  war.  ...  A  state  without  the  institution 
of  war  would  be  no  state  at  all  because  it  fails  to  meet  the  mast 
important  part  of  its  task.    .    .    . 

Hence  there  must  be  an  inexorably  strict  law  of  subordination,, 
and  for  each  man  the  feeling  that  he  is  but  an  infinitesimal  atom 
in  the  aggregate,  but  a  cog  in  the  machinery,  a  means  for  the  great 
purpose  of  the  totality  of  its  people.  ...  He  deserves  to  be  free 
who,  conscious  of  the  purpose  in  question,  is  willing  blindly  to  obey 
the  man  higher  up ;  and  he  is  a  real  man  who  in  the  midst  of  danger, 
quietly  and  thoughtfully,  makes,  in  the  higher  one's  place,  the  best 
use  of  the  gift  granted  to  him  for  the  great  purpose.    .    .    . 

'  Lasson,  Das  Culturideal  und  der  Krieg,  pp.  15-17. 


liv  INTRODUCTION 

A  people  that  makes  light  of  its  oath  and  whose  warriors,  instead 
of  obeying,  want  to  guide  and  direct  the  action  of  the  state,  is  with- 
out the  slightest  doubt  on  the  brink  of  ruin,  and  when  the  moment 
of  danger  approaches,  becomes  the  prey  of  destruction. 

Military  training  is  a  health  bath  for  any  people,  and  a  rejuve- 
nating bath  for  a  people  that  is  growing  old.  Without  such  training 
any  people  will  degenerate  physically,  even  as  it  must  morally  degen- 
erate w'hen  those  psychic  activities  which  find  their  sufficient  excite- 
ment in  war  only,  are  stunted  in  permanent  peace.    ..." 

When  in  an  atmosphere  of  freedom,  people  are  but  talking  of 
rights  and  not  of  obligations,  there  can  be  no  idea  of  what  freedom 
is  and  such  people  are  not  ripe  for  it.  .  .  .  The  real  warrior  is  the 
best  citizen;  a  people  militarily  trained  can  best  bear  and  thrive  in 
the  atmosphere  of  freedom.    .     .     .- 

War  is  but  the  natural  condition  between  states.  Between  states 
there  is  no  friendship,  only  a  community  of  interests  which  in  turn 
may  develop  into  a  conflict  of  interests.  For  as  a  reasonable  natural 
being,  the  state  is  an  absolutely  selfish  being,  and  like  any  other  mere 
natural  being,  it  is  everywhere  completely  justified  in  its  selfishness ; 
no  one  has  a  right  to  demand  anything  else  of  it ;  no  one  may  expect 
anything  else  from  it.  .   .   . 

It  is  not  society,  but  the  state  that  wages  war.  The  state  is  not 
society;  nor  does  it  exist  in  the  interest  of  society.  .  .  .  From 
the  point  of  view  of  the  state,  the  progress  of  civic  society  is  merely 
to  increase  the  power  of  taxation  and  the  military  power  of  the 
state.  .  .  . 

A  small  state  has  no  honor  because  it  has  no  mission.  In  the  true 
state,  however,  all  living  forces  serve  the  honor  of  the  state  as  the 
simple  expression  of  its  fully  justified  historic  existence.  The  poet 
is  therefore  right  in  saying  that  that  nation  is  unworthy  to  exist 
which  does  not  stake  its  all  for  the  sake  of  its  honor.    .    .     .' 

The  peculiar  culture  of  a  people  is  its  highest  possession,  at  least 
the  form  in  which  the  highest  possession  exists  for  that  people.  Its 
honor,  its  human  dignity  depends  thereon.  Where  the  condition  of 
this  culture  is  threatened  by  the  foreigner,  there  the  elemental  state 
of  things  reasserts  itself,  and  the  eternally  indestructible  and  sound 
natural  basis  of  the  human  being,  the  physical  power  of  the  body, 
directed  by  the  intellectual  power  and  by  the  resolve  of  the  will, 
seeks  to  ward  off  this   foreign  encroaching  invasion  through   war. 

'  Lasson,  Das  Culturideal  und  der  Krieg,  pp    18-21. 

^  lUd.,  p.  22.  •  Ibid.,  pp.  26-28. 


INTRODUCTION  Iv 

Every  reasonable  war  is  a  war  in  behalf  of  the  form  of  culture, 
though  it  may  even  develop  into  a  war  for  the  existence  of  the 
state. 

Once  a  war  has  broken  out,  then  all  is  at  stake;  for  every  war 
postulates  the  "to  be  or  not  to  be."  Each  of  the  belligerents  means 
to  strike  at  the  heart  of  his  opponent  and  seek  out  his  most  vulner- 
able spots,  that  the  intended  blows  may  strike  the  more  effectively. 
In  war,  a  state  must  be  ready  for  the  worst;  it  would  therefore  be 
weak,  to  exercise  any  sympathy  before  the  decision  has  been  brought 
about,  and  it  would  be  miserable  on  the  part  of  either  of  the  belliger- 
ents to  count  upon  sympathy.  .  .  .  Where  there  is  an  aggregate 
compound  that  feels  itself  as  such,  it  must  have  room  to  labor  to 
obtain  the  material  positions  and  the  ideal  purposes  of  culture,  in 
its  own  peculiar  outer  organization  of  right,  in  conformity  with  its 
own  peculiar  moral  ethics;  this  free  action  must  not  be  denied  it. 
Such  is  the  all  comprehensive  concept  of  popular  freedom;  that 
which  is  contrary  thereto  is  servitude. 

One  can  never  tell  in  advance  what  tremendous  dimensions  a  war 
may  assume,  even  when  it  has  an  apparently  trifling  beginning.  .  .  . 
To  begin  a  war  without  real  necessity  is  to  tempt  Providence. 

A  people  may  never  cease  to  be  warlike.  Where  extreme  neces- 
sity does  not  force  the  sword  into  the  hand  of  the  opponent,  a  people 
of  culture  will  with  noble  resignation  avoid  entering  into  war.  And 
even  though  the  opportunity  were  ever  so  favorable  and  its  superi- 
ority over  the  opponent  undoubted:  war  must  not  be  waged  so  long 
as  it  can  be  avoided.  There  is  but  one  thing  that  justifies  war:  the 
freedom  of  the  people  must  be  indirectly  or  directly  threatened. 
Every  reasonable  war  is  a  w^ar  for  freedom  or  for  the  necessary 
conditions  of  freedom,  and  a  war  for  freedom  is  alone  moral  and 
rational.    .    .    .^ 

It  is  mere  idiocy  to  preach  against  wars  of  conquest  as  such.  .  .  . 
An  industrial  state  which  has  an  insufficient  coast  outlet,  a  people 
distant  from  the  seas,  a  state  whose  territory  lacks  natural  connec- 
tion because  of  territories  lying  between  it  and  the  seas,  or  other 
states  lacking  the  controlling  heights  or  river  courses  and  the  natural 
points  of  support  for  their  own  defense,  or  which  are  excluded  from 
the  use  of  the  most  important  lines  of  communication :  all  such  states 
have  the  natural  and  absolutely  justified  right  to  supplement  the 
necessary  conditions  for  their  existence,  to  secure  that  which  they  need 

'  Lasson,  Das  Culttirideal  und  der  Krieg,  pp.  29-31. 


hi  INTRODUCTION 

and  that  which  thej'  must  necessarily  have  in  order  to  be  able  to 
exist  in  safety.  Through  generosity  they  may  secure  it  in  rare  cases 
only;  they  must  therefore  obtain  it  through  force  by  clearly  and 
forcibly  profiting  by  the  most  favorable  opportunity.    .    .    . ' 

It  is  clear  that  the  ideal  effort  must  react  against  the  real  forms 
historically  evolved.  Wherever  culture  has  risen  to  a  high  level  and 
the  impulse  for  freedom  has  become  strong,  the  people  look  to  the 
national  state  to  secure  that  which  has  been  established,  because  only 
in  the  state  is  there  a  real  preserver  through  which  the  most  precious 
treasure  of  the  cultural  people,  its  peculiar  form  of  culture,  its 
language,  its  rights,  its  poetry,  its  science  and  its  schools  can  thrive 
and  develop.  While  this  looked-for  state  is  being  created,  other  states 
which  oppose  this  ideal,  must  be  destroyed.  This  question,  of  course, 
can  be  settled  through  force  only ;  for  no  state  is  generous  enough  to 
be  willing,  for  the  sake  of  sentimental  reasons,  to  permit  of  its  dis- 
integration.   .    .     .- 

Any  wholesome  culture  is  characterized  by  a  strong,  sufficient, 
proud,  and  glorious  state  which  in  case  of  need,  may  through  ener- 
getic action,  prove  to  the  other  states  its  greatness  and  its  right. 

The  right  to  exist  in  national  independence  is  not  the  innate  right 
cf  a  people ;  rather,  it  must  be  acquired  through  high  endeavor.  Only 
a  people  which  actually  develops  the  necessary  power  for  the  defense 
of  its  independence  has  thereby  shown  its  right  to  such  independence, 
and  such  right  will  remain  secured  to  it  if  the  people  do  not  grow 
debilitated.  .   .    . 

Whoever  wishes  to  realize  his  desire,  must  will  to  have  the 
means  to  bring  it  about;  whoever  desires  independent  development, 
must  adequately  organize  the  powers  to  safeguard  it.  .  .  .  It  is 
the  mission  of  culture  to  make  itself  felt  as  a  power.  If  culture 
neglects  this  mission,  it  shows  itself  thereby  a  one-sided  feature  in  the 
life  of  mankind,  and  another  people  must  take  in  hand  the  mission 
it  has  failed  to  fulfill;  the  former  people  must  in  such  case  eat  the 
hard  bread  of  servitude,  a  tread  which  is  enjoyed  the  less,  if  in 
spiritual  development  the  people  feel  themselves  superior  to  their 
ruler. 

No  one  is  compelled  to  be  a  serf.  Whoever  is  not  able  to  bear 
servitude,  may  escape  it  by  surrendering  his  life.  Let  war  in  such 
case  decide,  a  war  in  which  each  of  the  serfs  is  ready  to  surrender 
his  life  in  order  to  save  freedom.    .     .     .    From  the  generosity  and 

^  Lasson,  Das  Culturideal  und  der  Krieg,  p.  32. 
2  Ibid.,  p.  35. 


INTRODUCTION  Ivii 

considerateness  of  people  of  high  culture,  people  of  a  lesser  culture 
must  not  expect  anything;  that  which  they  wish  to  obtain  let  them 
obtain  it  in  battle  with  the  w^atchword:  Freedom  or  Death. 

The  builders  of  new  worlds  upon  the  ruins  of  decayed  races  are 
appointed  to  take  in  tow  those  other  peoples  unable  to  develop  inde- 
pendently and  to  establish  things  perpetually  valuable,  and  to  appro- 
priate their  physical  powers  for  their  own  purposes,  so  that  they  may 
not  be  wholly  wasted  to  mankind.  A  war  waged  by  an  active  people 
in  order  to  subject  a  passive  people,  is  a  rational  war/ 

Every  nation  is  justified  in  hating  any  other  nation;  it  is  com- 
pelled to  do  so  whenever  the  foreign  nationality  threatens  its  own 
existence ;  the  word  nation  is  here  to  be  understood  in  its  most  strict 
sense;  individuals  as  such  are  not  referred  to.  To  curb  or  to  loosen 
this  hatred,  as  circumstances  may  require,  is  the  task  of  state- 
craft, according  to  the  prevailing  inferior  or  superior  interests  of 
national  egotism  and  of  the  general  human  movement  of  culture. 

National  hatred  fosters  the  durable  possibility  of  war;  the  con- 
flicting interests  of  national  cultures  bring  it  ever  and  anon  into  the 
realm  of  reality.  For  there  is  always  a  moment  when  foreign  cul- 
ture is  not  furthering  the  national  culture,  but  obstructs  it,  and  then 
is  the  time,  under  any  and  all  conditions  to  stand  for  the  national 
culture  and  to  combat  the  foreign  influences  if  unavoidable,  by  means 
of  the  physical  force  organized  by  the  state.^ 

Whoever  possesses  the  power,  let  him  use  it;  whoever  does  not 
trust  his  power,  let  him  be  careful  not  to  interfere  in  matters  where 
might  only  confers  upon  him  the  right  to  enforce  his  advice  and  his 
judgment.    .    .    .' 

In  war,  .  .  .  strength  is  ineffectual  if  it  is  not  accompanied 
by  skill  and  readiness  to  act,  if  it  is  not  supported  by  the  clever  use 
of  the  moment,  through  the  ever  ready  presence  of  mind,  through  the 
true  love  for  the  duty  and  the  cause  for  which  one  fights,  through 
the  sacrificial  enthusiasm  for  the  whole ;  for  any  war,  when  the  strug- 
gle for  life  and  death  is  being  waged,  when  at  the  same  time  victory 
means  immortal  glory  and  defeat  endless  disgrace,  an  irreparable 
loss,  all  minor  and  base  motives  are  lost  sight  of  and  the  vast  pur- 
pose of  mankind  discovers  its  well  appointed  arena. 

The  outcome  of  war  is  therefore  always  righteous;  it  is  a  true 
judgment  of  God.  The  highest  right,  the  last  right  depends  on  the 
sword.    The  weak  succumbs  to  the  strong;  in  the  political  realm  this 

*  Lasson,  Das  Culturideal  und  der  Krieg,  pp.  37-40. 

2  Ibid.,  p    42.  » Ibid.,  p.  45. 


Iviii  INTRODUCTION 

means  that  wrong  succumbs  to  right  or  the  lesser  right  to  the  higher 
right.    .    .    . 

No  state  which  itself  is  powerful  doubts  the  right  of  might. 

The  small  state  finds  comfort  in  the  feeling  that  that  which  has 
been  agreed  upon  through  treaty  shall  not  be  violated,  because  it  will 
guarantee  its  wretched  existence.  ...  A  treaty  as  a  result  of  which 
a  state  can  no  longer  exist  nor  fulfill  its  mission,  is  null  and  void, 
for  the  simple  reason  that  the  state  is  strong  enough  to  tear  it  to 
pieces.  A  contractual  right  between  states  is  guaranteed  in  only 
one  way :  through  a  sufficient  military  power  to  compel  the  observance 
of  the  treaty. 

"We  must  learn  to  distinguish  between  the  letter  of  the  contrac- 
tual right  and  right  in  its  true  sense.  The  treaty  at  some  time 
may  have  been  a  righteous  treaty;  but  it  will  certainly  become 
unrighteous,  for  the  conditions,  under  which  it  was  held  to  be 
righteous,  change.    .    .    .' 

Important  as  is  the  security  of  the  status  of  peace  for  peaceful 
labor,  it  is  destructive  of  all  real  virility.  War,  therefore  is  a  liber- 
ating element  and  rejuvenates  a  civilized  people.    .    .    J 

Under  certain  conditions,  the  state  demands  war  as  an  extreme 
necessity;  in  such  ease  no  subjective  disinclination  must  prevent  it 
from  taking  such  action.  It  would  be  highly  immoral,  it  would  be 
an  evident  violation  of  primordial  ethical  principles  for  kindly  and 
humanitarian  reasons  and  the  like,  not  to  wage  the  war  that  must 
be  waged.  ...  A  king  shall  not  be  a  lover  of  peace,  nor  shall  he, 
of  course,  be  a  lover  of  war ;  he  must  love  peace  when  the  state  needs 
peace,  and  he  must  not  avoid  war,  when  war  is  necessary  for  the 
state.    .    .    .* 

The  fact  that  states  practice  self-seeking,  .  .  .  and  are  not  will- 
ing to  enter  into  strict  legal  relations,  appears  to  be  the  constant 
cause  for  those  fearful  hostilities  which,  recurring  intermittently, 
threaten  with  ruin  all  that  has  been  established  by  cultural  labor 
through  the  years,  and  force  at  times  the  people  of  different  states 
to  think  out  in  what  manner  they  may  inflict  upon  one  another  as 
much  evil  as  possible. 

Can  it  be  said  that  man  has  to  perform  a  duty  where  his  will- 
power cannot  exert  itself?  and  can  it  be  a  matter  of  practical  reason 
to  endeavor  to  ameliorate  things  upon  which  reason  is  denied  the 
power  to  act?    Let  us  suppose  that  human  will-power  were  able  to 

^  Lasson,  Das  Culturideal  und  der  Erieg,  pp.  50-52. 

» Ibid.,  p.  55.  » Ibid.,  p.  63. 


INTRODUCTION  lix 

establish  those  conditions  of  social  life  which  eternal  peace  postu- 
lates: would  eternal  peace  be  a  matter  of  practical  reason  if,  together 
with  its  conditions,  it  (eternal  peace)  presented  a  much  greater  evil 
than  that  which  it  is  to  do  away  with? 

The  average  man  means  to  do  away  with  the  evils  that  arise  in 
the  community  of  mankind  by  establishing  everywhere  a  thorough- 
going legal  organization.  By  such  a  super-state  organization  it  is 
thought  that  the  painful  and  destructive  conflicts  between  the  states 
may  be  removed.  .   .    .' 

That  the  right  is  intended  to  prevail  within  the  state,  lies  within 
the  concept  itself  of  the  state;  but  it  is  not  quite  so  clear  that 
without  and  between  states  a  legal  organization  is  possible:  the 
question  seems  appropriate  as  to  whether  states  can  be  subjects  of 
a  legal  organization  and  whether  a  legal  organization  is  possible 
where  there  are  no  subjects. 

The  power  of  the  state  seems  immeasurable,  its  ways  and  means 
seem  inexhaustible;  but  that  both  these  attributes  have  their  limit, 
and  that  the  state  possesses  nothing  except  it  be  given  to  it.  these 
are  matters  which  the  average  man  has  difficulty  in  comprehending. 

Of  all  things  existing  on  this  earth,  the  existence  of  the  state  is 
most  confronted  with  danger,  ever  full  of  fear  and  compelled  to  infuse 
fear,  and  therefore,  with  all  its  power,  the  state  is  the  most  necessi- 
tous of  all  beings.  ...  Its  needs  are  indeed  infinite,  and  the  means 
offered  it  to  meet  these  needs  are  limited,  even  under  the  most  favor- 
able circumstances.  The  state  must  secure  these  means  by  force,  for 
it  possesses  nothing  itself,  and  without  force  it  obtains  nothing.  .  .  . 
Thus  it  has  ever  been,  thus  it  is  even  now,  and  thus  it  shall  ever 
essentially  remain,  as  long  as  man  is  man  and  state  is  state.  Only 
the  visionary    .    .    .    can  deceive  himself  upon  this  matter.    .     .     .- 

The  eternal  laws  of  nature  are,  however,  an  irremovable  barrier 
to  the  power  of  will,  and  this  power  of  will  cannot  but  let  these  laws 
have  their  course.  .  .  .  From  the  beginning  of  time,  even  to  the 
present  day,  it  has  been  a  fact  without  exception  that  hostility  rules 
between  state  and  state,  between  people  and  people;  an  absolutely 
unfeeling  relation  exists  between  state  and  state,  between  people  and 
people  for  the  acquisition  of  all  things  of  the  earth  and  their  existence 
itself ;  there  are  passing  moments  of  friendship  between  them,  but  in 
the  background  of  it  all  there  lurks  naked  selfishness;  and  in  every 
moment  there  lies  the  possibility  of  a  fearful  outbreak  into  extreme 

*  Lasson,  Princip  und  Zukunft  des  Volkerrechts  (Berlin,  1871),  pp.  2-3. 
'Ibid.,  pp.  4-7. 


Ix  INTRODUCTION 

hostility  which  means  to  rob  the  other  party  of  this  or  that  posi- 
tion or  this  or  that  comfort  of  life,  because  each  has  to  fear  the  same 
from  the  other,  and.  with  all  means  of  destruction  and  the  loosing  of 
the  fiercest  hatred,  would  deprive  one  another  of  the  roots  of  their 
existence.  It  is  this  fact  which  in  all  its  causes  and  inner  necessity 
we  must  realize  and  understand. 

1. — Tlie  plurality  of  states  cannot  he  doiie  away  ivitli.  Where 
there  are  men,  there  must  be  a  legal  organization  protected  by  force. 
But  men  are  not  free  so  long  as  the  legal  organization  which  compels 
them  to  submission  does  not  meet  their  inner  nature  and  conscious- 
ness, but  is  imposed  upon  them  as  a  yoke.  But  men  are  intended  to 
be  free;  it  would  therefore  be  unreasonable  to  subject  different  peo- 
ples to  one  and  the  same  law  of  right,  because  in  such  case  only  one 
of  the  peoples  thus  united,  or  even  none  at  all  would  find  the  road 
open  to  free  development  in  accordance  with  its  own  inner  principle 
of  life,  and  because  those  would  not  be  free  to  whom  this  road  were 
closed. 

It  would  be  an  unreasonable  state  of  affairs  if  national  natures, 
60  different  in  their  inner  being,  did  not,  so  far  as  possible,  have 
their  own  appropriate  national  boundaries.  ...  A  people  stakes 
its  honor  to  preserve  its  culture;  it  would  incur  the  stigma  of  self- 
contempt,  it  would  dishonor  itself  and  become  enslaved  if  it  could 
no  longer  uphold  its  own  peculiar  culture ;  and  along  with  the  people 
as  a  whole,  each  single  component  individual  of  it  would  become  dis- 
honored and  rob  itself  of  its  better  self.    .    .    .' 

The  universal  state  as  a  legal  organization  binding  upon  all  men 
alike,  is  impossible  so  long  as  there  are  different  national  natures  in 
which,  in  part,  the  outward  circumstances  of  existence  establish 
fundamentally  different  needs  and  require  nistitutions  of  different  out- 
ward organization,  and  in  which,  on  the  other  hand,  peculiar  currents 
of  the  activity  of  the  will  are  reflected  in  the  mind  in  an  essentially 
different  form.  The  universal  state  would  therefore  be  against  the 
nature  of  things  and  of  man ;  it  would  lead  to  an  extreme  despotism 
and  to  the  forcible  servility  of  the  peoples,  and  quite  apart  from 
the  evident  outward  impo.ssibility  of  its  realization  when  once  incor- 
porated into  the  life  of  mankind,  it  would  not  present  a  higher  and 
more  complete  organization  of  things  than  the  present  organization 
does,  but  it  would  merely  serve  to  debase  mankind  and  throw  into 
chaos  all  the  constitutive  elements  of  the  present  organization. 

The  will  which  we  call  state,  has  its  inner  limitation  only  in  the 

'  Lasson,  Princip  und  Zukimft  des  Volkerrechts,  pp.  8-10. 


INTRODUCTION  Ixi 

pcsitiveness  of  its  purpose;  but  it  extends  unlimited  over  all  things 
in  the  entire  realm  of  nature  that  can  serve  that  purpose.  Hence  it 
is  possible  that  the  will  of  different  states  is  directed  to  one  and  the 
same  object  and  that  between  them  the  conflict  may  arise  even  as, 
under  like  conditions,  it  may  arise  between  the  will  of  the  individual 
human  beings.    ..." 

A  tremendous  step  in  advance  was  made  when  a  bold  mind  dared 
to  free  statecraft  unceremoniously  from  all  theological  notions  and  to 
build  it  up  on  its  own  peculiar  principles.  Statecraft  is  really  ruled 
by  the  principle  of  interest.  For  the  state  is  essentially  a  purpose, 
a  definite  final  purpose;  that  is  to  say,  it  does  not  will  merely  the 
good,  but  the  really  useful  in  this  respect ;  in  all  its  activities  it  is 
guided  by  its  interest  and  by  nothing  else.  ...  To  succeed  in 
establishing  a  real  state,  a  temporary  despotism  of  the  strongest  was 
the  inevitable  means,  and  for  this  purpose,  that  is  to  say,  to  build 
the  national  state,  Machiavelli  advocates  in  the  deed  the  uttermost 
inconsiderate  use  of  lawless  force.  .   .   .  - 

Machiavelli  is  indeed  right  when  he  asserts  that  the  standard 
of  the  outward  activity  of  the  state  is  not  controlled  by  morality, 
not  by  right,  but  by  shrewdness.  Yet  when  he  explains  how  this 
shrewdness  proceeds,  he  teaches  indeed  how  one  can,  with  calculated 
cunning,  obtain  momentary^  and  transitory  successes,  but  not  how 
durable  and  permanently  insured  things  are  created.  ...  To 
awaken  and  to  foster  confidence  is  therefore  the  first  commandment 
of  shrewdness,  and  confidence  one  secures  only  through  honesty.  If 
durable  peace  is  to  be  acquired  by  the  state,  honesty  is  therefore  the 
best  means  to  secure  it,  and  institutions  must  be  created  which  are 
the  expression  of  this  mutually  prevailing  honesty  between  state  and 
state.  Such  institutions  are,  however,  made  impossible  by  a  state- 
craft such  as  is  taught  by  Machiavelli ;  he  falsifies  that  which  is  in 
itself  a  correct  principle  when  he  regards  shortsighted  faithlessness, 
baseness  of  mind,  absence  of  all  moral  viewpoints — all  attributes  which 
in  many  ways  characterize  his  own  nation  and  his  entire  generation, 
but  especially  the  statesmen  of  those  times, — as  the  logical  conse- 
quence of  the  shrewd  selfishness  which  is  the  rule  of  the  political 
activity  of  the  state;  and  those  institutions  which  are  based  upon 
honesty  have  their  source  in  selfishness.    ...  * 

The  state  which  is  not  controlled  by  the  idea  of  that  which  is 
right  is  not  in  any  way  whatever  bound  by  anything  but  its  own 

'  Lasson,  Princip  und  Zukunft  des  Volkerrechts,  pp.  12-13. 

2  Ibid.,  p.  15.  » Ibid.,  p.  17. 


Ixii  INTRODUCTION 

purposes;  hence,  everywhere  and  in  any  manner  it  sees  fit,  it  seeks 
that  which  is  useful  to  it,  and  it  is  its  nature  to  be  shrewd  and  noth- 
ing but  shrewd  in  pursuing  its  selfish  interests. 

All  that  which  may  be  required  of  the  person  of  the  statesman 
is  that  he  understand  this  will  of  the  state  and  that  he  carry  it  out 
regardless  of  his  own  will  and  his  own  interest.    .    .    .' 

By  nature  and  independent  of  his  own  will  and  choice,  the  indi- 
vidual being  is  the  subject  of  a  legally  organized  community;  the 
state,  however,  can  never  be  a  subject,  not  even  if  it  wanted  and 
desired  to  be  a  subject,  unless  it  surrendered  itself  completely  and 
ceased  to  be  a  state.  A  legal  organization  with  compulsory  force  at 
its  command  and  to  which  the  states  were  subject,  would  itself  be  a 
state,  and  the  states  subject  to  it  would  no  longer  be  states,  but 
subjects.  Instead  of  the  many  states  we  would  therefore  have  a  uni- 
versal state,  and  such  a  state  cannot  and  shall  not  be.  With  such 
a  state  all  freedom  would  vanish  from  the  earth,  and  to  mankind 
there  would  be  nothing  else  in  store  except  general  decay  and  decom- 
position.   .    .    . 

Therefore,  a  state  can  never  submit  to  a  judicial  deci- 
sion. .   .   .- 

This  treatment  of  a  legal  organization  to  be  established  over  and 
between  states  is  an  idle  and  senseless  dream,  born  of  cowardice  and 
false  sentimentalism  surrounded  with  a  halo  of  possible  realization 
and  reasonableness  through  the  misuse  of  words  and  through  con- 
tiicting  and  confused  pictures.    .     .     .* 

In  the  first  place,  the  state  must  protect  the  interests  of  its 
people  which  in  part  are  its  own  interests  as  well ;  at  the  same  time, 
however,  the  state  has  its  own  peculiar  interests  which  it  must  guard 
and  which  command  it  to  secure,  wherever  it  may  find  it,  that  which 
is  useful  for  its  existence. 

Wherever  on  earth  there  may  be  goods  accessible  to  two  states, 
the  latter  may  come  into  conflict  and  will  most  certainly  get  into 
conflict.    .    .     .* 

Antipathy  exists  between  peoples  differently  constituted  at 
heart,  regardless  even  of  the  danger  which  mutually  confronts  one 
another,  and  regardless  of  the  mutual  fear  arising  therefrom.  .  .  . 
One  people  is  unfriendly  to  another  people ;  in  the  conflict  of  interests 
this  aversion  develops  into  an  embittered  deadly  hatred,  and  this 
repulsive  power  of  the  consciousness  of  one's  own  worth  and  of  one's 

'  Lasson,  Princip  und  Zukunft  des  Volkerrechts,  p.  21. 

2/6td.,  p.  23.  ^Ibid.,  p.  20.  *  Ibid.,  pp.  31-32. 


INTRODUCTION  Ixiii 

own  nature  belongs  inseparably  to  and  forms  a  part  and  parcel  of 
the  healthiness  of  a  people's  life.  A  people  that  cannot  hate  what 
is  alien  to  it,  are  a  wretched  people,  unworthy  of  independence 
and  destined  to  be  plundered  and  robbed.  It  is  a  repulsive  picture 
for  a  people  which  has  been  scorned  and  mistreated,  "to  do 
penance  in  sackcloth  and  ashes"  and  to  live  in  shame,  instead  of 
striking  the  violator  to  the  earth,  at  the  risk  of  their  own  existence, 
or  of  going  down  in  defeat  with  honor. 

*  The  state  itself  is,  of  course,  unable,  on  its  part,  to  share  in  this 
hatred  of  the  peoples;  for  the  state  is  a  thoroughly  heartless  being; 
its  egotism  is,  for  that  very  reason,  all  the  more  inconsiderate  in  the 
interests  of  others.  It  is  the  task  of  the  state  to  safeguard  the  legal 
organization  adequate  for  the  people  and  at  the  same  time  to  realize 
and  secure  those  conditions  making  for  the  development  of  the 
peculiar  culture  of  the  people.  To  this  end,  it  resorts  to  any  and 
all  means  at  its  disposal.  In  the  hatred  of  peoples  it  finds  such 
a  means  for  safeguarding  the  treasured  possessions  of  the  Father- 
land. .   .   .' 

Right  and  morality  do  not  bind  the  will  of  the  state.  There  is 
but  one  thing  which  may  hinder  the  state  in  the  pursuit  of  its  selfish 
interests,  namely,  fear  of  a  foreign  power.  It  is  only  toward  the 
weak  that  a  state  acts  boldly  and  dares  to  do  what  it  pleases ;  uneasi- 
ness and  fear  compel  the  state  to  act  considerately  toward  the  strong ; 
for  the  issue  of  the  battle  would  be  uncertain,  and  the  danger  for 
success  and  existence  alone  would  be  evident.  Hence,  all  international 
relations  are  controlled  by  the  point  of  the  sword ;  might  alone  decides ; 
the  strong  alone  can  exist ;  and  the  weak,  because  of  their  very  weak- 
ness, are  destined  to  succumb. 

The  state  of  self-defense  excludes  any  and  all  consideration,  and 
it  is  a  war  of  all  against  all,  if  not  a  war  of  open  violence,  yet  the 
latent  war  of  cunning  and  prudence.  A  right  without  guarantees 
is  no  right  at  all.  For  lack,  therefore,  of  a  guaranteeing  force,  the 
states  are  engaged  in  an  incessant  warfare.    .     .     .- 

There  is  a  system  of  provisions  which  is  closely  related  to  the 
legal  organization  established  within  the  states,  and  which  system, 
in  contradistinction  to  the  system  of  laws  prevailing  within  a  state, 
has  been  called  the  law  of  nations,  international  law,  public  law.  But 
along  with  the  similarity  existing  between  these  two  systems  we  must 
not  lose  sight  of  the  differences  between  them  in  order  that  we  may 

'  Lasson,  Princip  und  Zukunft  des  Volkerrechts,  pp.  33-34. 
*Ibid.,  pp.  35-36. 


Ixiv  INTRODUCTION 

not  confound  the  two  and  not  attribute  to  this  law  of  nations  the 
qualities  of  the  real  law,  with  which,  in  the  nature  of  the  things, 
international  law  has  nothing  to  do.  For  such  a  confusion  would 
lead  not  only  to  a  grievous  political  error,  since  in  our  everyday  life 
we  can  see  how  through  such  a  confusion  of  different  conceptions 
in  the  one  indistinct  representation  of  the  law,  consequences  most 
inimical  to  the  practical  treatment  of  political  relations  arise  and 
misrepresent  the  sentiments  of  the  people.    .    .    . ' 

International  institutions  have  no  guarantees  of  a  legal  nature. 
Their  observance  cannot  be  compelled:  for  there  is  no  greater  power 
than  the  power  of  the  state.  .  .  .  The  state  will  observe  stipula- 
tions which  are  not  causing  it  essential  injury  so  long  as  urgent 
interests  do  not  compel  it  to  disregard  such  stipulations;  it  will 
observe  its  word  and  an  obligation  which  it  has  taken  upon  itself  as 
long  as  it  can  continue  to  exist  under  these  limitations  and  fulfill 
its  purposes ;  and  it  will  do  so  the  more  certainly,  if  it  comprehends 
thoroughly  its  interests.  For  the  state  must  wish  that  another  state 
observe  its  given  faith  and  meet  it  in  honesty,  so  that  it  may  enjoy 
some  security  and  some  peace,  and  it  can  secure  these  only  provided 
it  keep  faith  itself.  But  in  case  of  an  urgent  necessity,  the  state  will 
of  course  not  be  able  to  observe  this  honesty  altogether,  especially 
so  when  reciprocity  cannot  be  depended  upon.  It  will  suffice  that 
other  states  know  that  it  means  to  observe  its  given  faith  up  to  the 
point  where  its  own  self-preservation  might  be  endangered,  that  is 
to  say,  where  a  compelling  necessity  will  force  it  to  break  its 
faith.    .    .    .' 

Through  historic  evolution  and  without  any  ill-will,  conflicts 
about  vital  interests  of  the  states  will  always  occur  and  cannot  be 
settled  except  by  force.  .  .  .  It  is  of  the  nature  of  things  that 
where  blind,  barbarous  passion  does  not  govern,  but  where  the  interest 
of  the  state  comes  to  expression,  this  part  of  international  law  is  able 
to  lead  to  a  lasting  and  certain  peaceful  intercourse.  And  something 
precarious  is  even  involved  in  this  matter  because  it  can  never  be 
certainly  determined  in  advance  as  to  whether  along  with  the  progress 
of  things  in  general,  something  agreed  upon  may  become  so  fraught 
with  contingencies  as  will  directly  threaten  the  prosperity  of  the 
state.  In  such  case,  and  in  the  nature  of  things,  the  state  cannot, 
under  the  pressure  of  its  urgent  interests,  keep  from  violating  its 
given  word  or  the  regulation  agreed  upon,  provided  it  cannot  free 

^  Lasson,  Princip  und  Zukunft  des  Tolkerrechts,  p.  43. 
*  Ibid.,  p.  45. 


INTRODUCTION  Ixv 

itself  of  this  obligation  in  any  other  way.  The  state  itself  must,  how- 
ever, decide  when  such  urgency  has  arisen;  no  other  state  can  pass 
judgment  upon  such  a  matter,  because  it  does  not  comprehend  the 
situation  and  the  needs  of  the  former  or  because  it  is  not  impartial, 
but  prejudiced  against  it.  All  rules  of  international  law,  both  those 
that  immediately  concern  the  self-preservation  of  the  state  and  those 
directed  to  the  regulation  of  less  important  relations,  are  valid  only 
upon  certain  conditions,  namely,  only  as  long  as  a  state  believes  that 
its  self-preservation  is  not  threatened  by  such  stipulations.  In  the 
latter  case,  the  will  of  the  state  cannot  be  controlled  by  outer  barriers ; 
it  will  do  what  it  pleases  to  do  without  regard  for  anything  else 
whatever.  This  is  the  nature  of  the  matter,  and  in  this  sense  every 
rule  of  international  law  should  be  understood,  that  is  to  say,  never 
should  the  state  be  required  to  observe  the  rule  absolutely,  nor  should 
the  state  itself  make  such  a  promise. 

Because  of  this  precariousness,  the  law  of  nations  is  no  law.  .  .  . 
International  law  is  a  voluntary  agreement  between  coordinate 
powers  which  the  latter  cannot  be  compelled  to  observe.    ..." 

International  law  is  a  means  of  progress  for  the  states.  These 
could  of  course  exist  in  unrestricted  independence  without  it ;  but 
international  law  is  of  advantage  to  them  in  order  that  in  time  of 
peace  they  may  the  more  easily  and  more  safely  realize  their  pur- 
poses. And  even  if  here  and  there  the  rules  of  international  law 
assume  the  form  of  legal  principles,  yet  according  to  the  tenor  and 
the  form  of  obligation,  they  are  principles  of  quite  a  different  kind. 
They  constitute  rules  of  shrewdness;  they  are  not  commandments  of 
law.    .    .    .^ 

All  barriers  are  rendered  powerless  under  the  pressure  of  neces- 
sity: we  know  of  what  little  use  has  been  the  promise  between  states 
affirmed  under  oath  with  regard  to  the  observance  of  the  promise 
itself.    ..." 

The  unrestricted  sovereignty  of  the  state  freely  to  dispose  of 
itself  and  to  direct  its  actions  in  accordance  with  the  necessities  of 
its  situation  cannot  be  impaired  through  international  law. 

In  dire  necessity,  the  state  will  not  observe  agreements,  and  no- 
body must  complain  about  the  unexpected  or  hateful  when  the  state, 
driven  by  necessity,  does  not  keep  the  faith  of  obligations  which  it 
has  taken  upon  itself.  .  .  .  We  must  be  on  our  guard  against  the 
state ;  it  can  never  be  bound  absolutely,  and  any  obligations  it  takes 


'  Lasson,  Princip  und  Zukunft  des  Volkerrechts,  p.  47. 
^lUd.,  p.  49. 


» Hid.,  p.  51. 


Ixvi  INTRODUCTION 

upon  itself,  it  goes  without  saying,  have  but  a  relative  value,  though 
this  may  nowhere  be  expressed,  even  in  the  face  of  the  most  explicit 
assurance  to  the  contrary.    .     .     .' 

An  agreement  entered  into  between  the  strong  and  the  weak  has 
no  sense  at  all.  As  soon  as  the  strong  is  confronted  by  a  pressing 
interest  to  break  such  an  agreement,  the  latter  is  by  that  fact  abro- 
gated and  destroyed  as  though  it  had  never  existed.  .  .  .  Only  he 
who  has  sufficient  force  to  threaten  the  other  party  to  the  same  extent 
as  he  himself  is  threatened,  may  on  the  basis  of  treaties  entered  into 
expect  in  some  measure  a  lasting  state  of  peace. 

Smaller  states  can  therefore  exist  in  complete  independence  by 
the  side  of  the  larger  ones,  only  in  case  they  can  find  confederates 
who  can  reenforce  their  power  of  resistance.  But  he  alone  can  secure 
confederates  if  his  existence  is  of  value  to  others.  Hence,  the  small- 
ness  of  states  is  reasonably  limited  by  this  consideration.  For,  a 
state  whose  worthlessness  for  the  entire  system  is  plainly  evident, 
which  as  a  confederate  is  of  no  importance  in  the  general  scheme  and 
in  whose  existence  no  one  takes  an  interest,  such  a  state  cannot  really 
continue  in  independence;  and  as  soon  as  it  is  drawn  into  a  crisis 
of  conflicting  interests  of  the  strong  states,  it  will  completely  dis- 
appear. A  relatively  small  state  can  prove  its  right  to  its  existence 
only  in  case  its  existence  is  an  essential  advantage  in  the  balance 
of  the  entire  system.    .    .    .^ 

A  further  question  is  as  to  what  significance  political  treaties  may 
have  with  regard  to  the  matters  therein  agreed  upon.  In  view  of 
what  we  have  already  said  it  must  be  evident  that  they  have  not 
the  strict  effect  of  legal  obligation. 

By  nature  every  state  is  so  constituted  that  it  cannot  accept  any 
fetters  to  its  will  except  on  the  condition  that  by  its  own  volition  it 
may  cast  them  off  again,  of  course  not  whenever  it  may  see  fit  to 
do  so, — for  the  state  possesses  no  such  arbitrary  and  unfounded 
right, — but    only    in    case    its   pressing    interests    demand   that    it 

do  80.^ 

A  treaty  will  be  observed  only  so  long  as  it  is  advantageous,  and 
it  is  not  advantageous  so  long  as  there  is  a  force  at  hand  by  which 
its  observance  may  be  compelled.  .  .  .  Whoever  concludes  a  treaty 
must  realize  that  he  cannot  rely  upon  its  being  observed.* 

War  is  waged  with  a  view  to  the  treaty  of  peace  which  is  to  be 
concluded;    .    .    .    war  has   a   political   aim   in   view,   namely,   to 

*  Lasson,  Princip  und  Zukunft  des  Volkerrechts,  pp.  53-54. 

2  Ibid.,  p.  58.  » Ibid.,  pp.  60-61.  *  Ibid.,  p.  65. 


INTRODUCTION  Ixvii 

reorganize  on  a  new  and  reasonable  basis  all  the  mutual  relations 
between  the  states. 

War  is  therefore,  in  effect,  merely  a  continuation  of  the  usual 
negotiations  between  states,  but  carried  on  in  different  form  and 
with  different  means. 

States  are  not  subject  to  a  law  of  right,  and  it  is  vain  to  attempt 
to  control  their  action  by  a  so-called  law.  There  is  no  praetor  above 
them  who  might  sit  in  judgment  upon  them;  rather  war  is  the  only 
praetor  which  does  not  render  its  judgment  with  regard  to  the  states 
according  to  a  code  of  laws,  but  according  to  justice.  This  praetor  is 
inexorable;  he  cannot  be  bribed;  there  can  be  no  appeal  nor  escape 
from  his  sentence. 

The  power  of  the  state  lies  in  the  discipline,  in  the  virility,  in  the 
manliness  and  in  the  education  of  its  citizens;  the  powerful  state 
is  the  better  state ;  its  people  are  the  better  people ;  its  culture  is  the 
more  valuable  culture.  Whoever  succumbs  must  acknowledge  that 
he  has  deserved  his  fate;  the  victor  may  say  unto  himself,  not  that 
he  was  good,  but  that  he  was  the  better  one  as  between  himself  and 
his  opponent.  Chance  cannot  decide  a  fight  or  battle,  nor  a  war. 
For  no  defeat,  no  victory  is  definitive.  All  international  relations 
are  in  constant  flux  and  undergoing  a  constant  change.  The  defeated 
party,  however  low  he  has  fallen,  may  rise  again ;  the  victor,  however 
great  his  victory  may  have  been,  may  sink  into  ignominy.  A  people 
must  constantly  assert  itself;  it  must  not  permit  the  fountain  of  its 
strength  to  run  dry ;  on  the  contrary,  it  must  ever  enrich  and  increase 
the  flow  of  its  strength.  .  .  .  The  state  must  be  strong.  This  is 
its  mission  and  its  duty ;  woe  to  the  state  if  it  neglects  this  first  duty 
and  chases  after  other  possessions  at  the  cost  of  its  might!  In  the 
great  historic  world  process  that  which  is  weak  succumbs  because  it 
is  worthless,  and  that  which  is  strong  maintains  itself  because  in  par- 
ticular events  and  at  a  particular  time  it  is  able  better  to  serve  the 
great  mission  of  mankind.  Such  is  the  eternal  impartiality  of  world 
history.    .     ,     .' 

The  nature  of  things  is  mightier  than  mere  vain  wishes ;  it  neither 
permits  now,  nor  will  it  ever  permit  that  the  states  shall  live  in 
friendship  and  mutual  love  or  that  they  shall  be  restricted  in  their 
actions  by  obedience  to  a  compulsory  legal  organization.  From  a 
greater  perfection  of  international  law  we  can,  therefore,  not  expect: 
that  international  relations  could  ever  be  regulated  on  the  basis  of 
right  or  morality;   from  such  perfection  we  may  however  expect 

*  Lasson,  Princip  und  Zukunft  des  Volkerrechts,  pp.  72-75. 


Ixviii  INTRODUCTION 

that,  more  than  hitherto,  the  true  interests  of  the  states  will  be 
safeguarded  and  that  the  relations  of  honesty  and  mutuality,  based 
upon  a  justified  self-interestedness  will  be  further  developed  and 
strengthened.    .     .     .' 

The  international  law  of  contract  has  no  absolute  value  for  the 
simple  reason  that  no  impartial  decision  and  no  absolutely  correct 
interpretation  of  it  can  be  expected.    .     .    .- 

The  states  do  not  fight  for  the  "right,"  nor  yet  for  "ideas,"  but 
for  their  interests,  and  they  bind  themselves  to  "right"  in  so  far  as 
their  interests  permit.  .  .  .  Truth  and  simplicity  alone  can  ameliorate 
human  institutions  and  ennoble  mankind;  if  things  on  earth  are  to 
be  made  better,  it  will  be  necessary  in  the  first  place  to  rid  inter- 
national relations  of  the  hypocritical  phrase  of  "right"  and  of  the 
"sacredness  of  treaties";  in  the  second  place  it  will  be  necessary  to 
recognize  expressly  that  international  law  has  no  other  guarantees 
than  its  own  inner  worth  and  its  conformity  to  that  which  is  advan- 
tageous for  the  self-preservation  of  the  states.  It  can  be  of  value 
only  in  case  statesmen  comprehend  the  true  interests  of  their  states 
and  in  case  the  propositions  of  international  law  correspond  to  these 
interests.  .    .    .^ 

All  civilized  peoples  wishing  to  live  in  peace  have  evident  need 
of  a  code  of  international  law,  generally  recognized,  and  apt  to  cover 
any  and  all  cases  of  disputes  that  may  arise  between  them.  But  such 
a  code  must  be  restricted  to  the  field  within  which  falls  the  real 
international  law  in  its  narrower  sense,  and  not  attempt  to  reach, 
in  each  concrete  case,  into  the  field  governed  by  temporary  treaties. 
It  is  difficult  to  draw  the  line  of  demarcation  in  this  matter;  .  .  . 
such  a  code  must  not  lose  sight  of  the  fact  that  international  law  is 
a  very  precarious  thing ;  it  must  not  attempt  to  bind  the  states  abso- 
lutely and  for  every  case  that  may  arise;  for  in  the  presence  of 
the  necessity  of  self-preservation,  all  rules  of  international  law 
disappear. 

There  is  no  promising  prospect  that  war  can  be  certainly  pre- 
vented once  and  for  all ;  this  can  be  accomplished  neither  by  a  law, 
nor  by  the  discretion  or  the  goodwill  of  a  person,  nor  by  any  insti- 
tution, however  excellent  it  may  be.  It  is  however  a  reasonable  and 
most  important  aim  of  all  human  endeavor  to  prevent  wars,  except 
where  they  cannot  be  avoided.    .    .     .* 

The  weak  neighbor  sharpens  the  appetite  of  the  stronger  and  he 

'  Lasson,   Princip   tmd  Znkunft  des   Volkerrechts,   p.   84. 

2 Ibid.,  p.  89.  "Ibid.,  p    91.  *  Ibid.,  pp.  93-94. 


INTRODUCTION  Ixix 

will  certainly  disappear  if  he  is  in  the  way  of  the  stronger  and  if  the 
proper  opportunity  to  attack  presents  itself.  Small  states, — we  do 
not  even  refer  to  minor  states,  for  minor  states  have  never  been  real 
states,  but  have  always,  through  a  fiction,  been  merely  looked  upon 
as  such, — small  states  should  not  exist  at  all;  they  are  a  danger  to 
peace;  they  are  the  bone  of  contention  of  the  strong  states;  they 
are  the  natural  cause  and  theaters  of  wars  and  through  their  desire 
to  exist,  they  are  constantly  engaged  in  intrigues  to  keep  apart  from 
one  another  and  in  constant  conflict  all  other  great  states  which  might 
do  injury  to  them. 

All  there  is  left  for  the  small  states  to  do  is  to  get  together  and 
constitute  themselves  into  a  federation  on  the  basis  of  equality,  or  to 
join  a  stronger  state  under  whose  hegemony,  or  even,  when  the  exist- 
ence of  such  a  state  in  full  independence  is  by  exception  a  need  of 
the  entire  system  of  states,  to  surrender  a  part  of  its  political  sover- 
eignty and  become  neutralized,  in  other  words,  to  renounce  foreign 
politics.  Neutralization,  moreover,  is  something  precarious;  the  ever 
present  question  in  this  respect  is  as  to  whether  or  not  in  a  pressing 
conflict,  its  recognition  can  be  safeguarded. 

It  is  necessary,  therefore,  that  the  states  should,  as  far  as  pos- 
sible, do  everything  to  develop  their  power.  An  army  as  large  as 
possible,  with  soldiers  as  intelligent  as  can  be,  with  the  best  trained 
officers  and  disposing  of  all  auxiliary  means  procurable  through 
science,  worth,  and  practice,  all  these  are  an  assurance  to  the  state 
that  it  will  not  be  heedlessly  attacked.  Rid  the  world  of  all  the  armies 
which  are  now  ready  to  do  battle,  and  social  life  will  be  the  same  as 
in  the  middle  ages,  before  there  were  standing  armies,  and  war 
will  incessantly  govern  between  the  states,  as  feud  reigned  between 
the  members  of  the  state  in  the  middle  ages.  Standing  armies  alone 
are  a  guarantee  for  a  lasting  state  of  peace;  without  them  the  bal- 
ance of  power  is  not  possible,  and  therefore  no  real  negotiations,  no 
honesty  and  reciprocity  can  prevail.  The  institution  of  the  standing 
armies  alone  saves  the  world  from  barbarism.  In  the  world  of  cul- 
ture, armies  can  only  be  increased,  never  diminished.  They  will  in- 
crease to  the  uttermost  limits  of  possibility,  even  to  the  point  when 
it  will  no  longer  be  possible  to  secure  the  means  for  their  maintenance 
and  when  their  existence  will  sap  rather  than  protect  the  productive 
strength  of  the  nation.  Hence,  to  make  war  the  exception  and  peace 
the  general  rule  is  a  problem  which  is  identical  with  that  other  prob- 
lem: to  make  the  armies  as  large  as  possible  and  as  inexpensive  as 
possible.    This  problem  can  be  solved  only  with  a  standing  army  just 


Ixx  INTRODUCTION 

large  enough  to  furnish  the  framework  for  its  enlargement,  with  the 
entire  population  armed  back  of  it,  so  that  all  who  are  physically 
fit  may  be  disciplined  in  the  use  of  arms  from  their  youth  up  and 
for  a  short  time  trained  in  real  military  technique,  and  able 
through  the  years  of  vigorous  manhood  to  strengthen,  in  case  of  war, 
the  power  of  the  Fatherland. 

The  actual  facts  of  history  go  to  prove  that,  other  conditions  being 
equal,  the  people  which  possesses  the  better  universities,  the  better 
scientific  laboratories  and  public  schools  is,  in  a  military  sense,  the 
fitter  and  stronger.  The  strength  of  people  in  war  is  in  general 
only  the  expression  for  its  moral  and  intellectual  capacity  and  for 
the  healthiness  of  its  institutions,  in  the  home,  in  the  community,  and 
in  the  state. 

An  army  of  professional  soldiers  or  an  army  of  mercenaries  is 
ever  at  the  command  of  the  caprice  of  the  ruler;  an  armed  people 
can  be  put  into  action  only  for  the  true  and  for  the  highest  interests 
of  the  Fatherland. 

Even  as  a  military  organization  which  permits  of  the  highest 
development  of  power  is  the  surest  guarantee  for  peace,  so  the  reali- 
zation of  the  ever  recurring  project  of  a  general  disarmament  is  the 
greatest  imaginable  danger  for  the  peace  of  the  world.  For,  taking 
things  as  they  are,  it  is  a  fact  that  might  can  be  held  in  check  only 
through  might;  so  soon  as  the  fear  of  a  foreign  might  ceases  the 
possibility  of  negotiation  for  peace  also  ceases.  The  voice  of  the  nego- 
tiator exerts  a  proper  influence  only  in  case  it  is  backed  by  the  neces- 
sary number  of  bayonets  and  guns  in  order  to  make  it  respected. 
,  .  .  Mirabeau  justly  answered  a  deputation  of  Quakers  who  came 
to  him  with  a  petition  seeking  to  secure  peace  through  disarma- 
ment :  ' '  It  is  weakness  which  causes  war ;  universal  resistance  would 
mean  universal  peace."    .    .    / 

(j)    Gustav  Rumelin  (1815-1889)2 

Is  politics,  that  is  to  say,  is  the  self-determined  administration  of 
all  the  affairs  of  the  state  subordinated  to  the  law  of  morality,  or 
shall  it  follow  independent  laws  of  its  own?  And,  accordingly,  are 
their  actions  permissible  in  politics,  but  forbidden  by  moral  law, 
and  vice  versa?  * 

^  Lasson,  Princip  und  Zukunft  des  Yolkerrechts,  pp.  109-114. 
*  Ueber  das   Verhdltniss  der  Politik  zur  Moral — Reden  und   Aufsatze   von 
Gustav  RUmelin,  vol.   1.     (Freiburg,  n.  d. ). 
•Ibid.,  p.   144. 


INTRODUCTION  Ixxi 

We  praise  and  honor  the  men  who  have  freed  their  people  from 
servitude,  from  degradation  and  from  impotency,  and  raised  them 
to  a  higher  plane  of  welfare,  power,  and  liberty,  without  our  losing 
sight  of  or  being  misled  in  our  judgment  by  the  fact  that  they  have 
accomplished  those  things  by  intrigue,  by  force,  by  blood  and  iron, 
and  by  other  means  which,  under  other  circumstances,  we  would 
condemn/ 

The  universal  validity  of  the  moral  requirements  is  beyond  all 
question.  There  can  be  absolutely  no  individual  nor  any  class  of 
free  human  actions  that  might  be  regarded  as  beyond  or  even  above 
the  law  of  morality.^ 

In  consequence,  if  politics  is  the  handiwork  of  man  and  the  result 
of  his  free  resolve,  it  must,  of  necessity,  and  to  its  full  extent,  become 
subject  to  conscience  and  to  the  control  of  moral  laws.  The  states- 
man cannot  be  separated  into  two  beings,  of  which  the  one,  the  non- 
politician,  would  possess  a  conscience,  and  the  other,  the  politician, 
none.    .    .    .* 

Now,  it  would  be  just  as  illogical  as  it  is  impracticable,  to  demand 
from  the  community  itself  the  same  course  of  action  as  from  those 
of  its  members  who  are  in  its  employ.  The  injunctions  "Thou  shalt" 
and  "Thou  shalt  not"  of  the  ten  commandments  and  of  all  legal 
language,  have  their  proper  sense  only  when  the  state  is  the  party 
which  commands,  and  the  individual  the  party  upon  whom  the 
command  is  enjoined.  The  state,  as  we  well  know,  has  no  parents 
to  honor;  it  has  contracted  no  union  which  it  might  break.  The 
injunction  "Thou  shalt  not  kill"  cannot  be  directed  against  him 
who  alone  wields  the  sword,  in  order  to  punish  the  murderer,  and 
who  must  spend  millions  for  the  purpose  of  preparing  the  most 
effective  instruments  of  death,  should  it  become  necessary  to  resort 
to  their  use  in  self-defense.  In  order  to  accomplish  its  purpose, 
the  state  must  likewise  covet  our  houses  and  fields,  our  oxen  and 
asses  and  any  other  of  our  property,  without  asking  the  individual 
how  he  likes  it.    .    .    .* 

It  may  well  be  asked  how  the  injunction  "Love  thy  neighbor  as 
thyself"  could  be  practicable  in  the  relations  of  one  state  to  other 
states?  None  of  all  the  ties  which  bind  man  to  man,  can  bind  the 
states  one  to  another.  Even  although,  in  this  respect,  more  ideal 
aims  should  be  considered  and  striven  for,  still  nations  actually 
confront  one  another  as  in  the  state  of  nature,  that  is  to  say,  they 

'  RQmelin,  Ueber  das  VerMltnias  der  Politik  zur  Moral — Reden  und  Aufsdtze, 
vol.  1,  p.  145. 

2 ibid.,  p.  147.  'Ibid.,  pp.  147-148.  *  Ibid.,  pp.  149-150. 


Ixxii  INTRODUCTION 

are  strangers  to  each  other,  and  are  compelled  to  observe  foresight 
and  mistrust,  even  as  wanderers  meeting  one  another  in  the  desert. 
Over  them  there  is  no  higher  power  than  their  own  to  regulate  and 
settle  their  relations.  "Love  thy  neighbor  as  thyself"  cannot  be 
applied  here.' 

In  short  the  entire  chapter  of  the  duties  of  love,  hence  the  chief 
part  of  all  morality,  is  not  practicable  for  the  states,  .  .  ,  Na- 
tions must  not  depend  upon  the  love  of  others,  but  upon  love  of 
self,  upon  the  preservation  and  development  of  their  own  power  and 
welfare.  It  may  not  be  maintained  that  it  is  the  unconditional  duty 
of  the  state  to  observe  treaties  into  which  it  has  entered  or  which 
it  may  have  recognized.    .    .    .^ 

Thus,  with  regard  to  the  duties  of  justice,  we  have  finally  reached 
the  same  conclusion  as  with  regard  to  the  duties  of  love.  Even  as 
all  human  actions,  politics  is  subject  to  a  moral  duty;  but  a  morality 
which  prescribes  virtues  and  duties  for  the  individual,  cannot  be 
made  use  of  in  the  administration  of  the  affairs  of  the  state.  In  their 
very  roots,  morality  and  politics  differ  from  each  other.' 

In  this  sense,  we  must  answer  No,  to  our  first  question — Is  politics 
subordinated  to  the  moral  law?  And  we  must  answer  Yes,  to  our 
second  question — Does  politics  bear  within  itself  a  self-governing 
and  independent  principle  for  its  actions?  By  these  answers  we 
merely  repeat  the  true  sense  of  the  old  maxim :  solus  puhlica  supretna 
lex  esto,  that  is  to  say,  every  other  consideration  is  subordinated  to 
the  preservation  and  welfare  of  the  community.    .    .    .* 

The  interests  of  an  individual  or  of  a  minority  are  subordinated 
to  those  of  a  majority  or  of  the  whole  community.  Individual  liberty 
is  subject  to  the  limitations  required  by  the  general  well-being.    .    ,    .^ 

The  interests  of  a  foreign  state  can  be  considered  only  in  so  far 
as  they  are  compatible  with  our  own.  The  preservation  of  the  state 
justifies  every  sacrifice  and  is  superior  to  every  commandment.^ 

The  principle  of  self-abnegation  applies  to  the  individual  citizen; 
the  principle  of  self-preservation  applies  to  the  state.  The  individual 
is  a  servant  of  the  law  which  the  state  creates,  directs,  and  executes. 
The  individual  is  only  a  transient  member  of  the  moral  organism; 
the  state,  if  not  this  organism  itself,  is  nevertheless  its  real  regulat- 
ing force ;  the  state  is  immortal  and  sufficient  unto  itself.    ..." 

In  cases  of  political  actions  of  an  extraordinary  character  which 

'  Riimelin,  Ueher  das  Verhaltniss  der  Politik  zur  Moral — Reden  und  Aufsatze, 
vol.  1,  pp.  149-150. 

2/6id.,  p.  150.  *Ihid.,  pp.  156-157.  8/6td.,  p.  156. 

*lhid.,  p.  156,  6  ibid.,  p.  161. 


INTRODUCTION  Ixxiii 

no  individual  is  compelled  to  perform,  introspection  and  wisdom  are 
a  bounden  duty,  and  stupidity  becomes  a  criminal  offense.  For  the 
politician,  caution  is  not  only  an  intellectual  but  a  moral  quality, 
and  whoever  lacks  this  quality,  or  even  whoever  is  incapable  of 
sound  judgment,  commits  a  sin  by  the  fact  that  he  aspires  to  a 
position  for  which  he  is  unfit  and  by  virtue  of  which  he  is  called 
upon  to  consider  interests  other  than  his  own.    .     .    .' 

But  the  condition  of  moral  politics  of  the  state  is  the  moral  sense 
of  the  peoples  themselves.  Only  if  among  the  German  people  the 
receptivity  for  ideal  possessions  maintains  its  preponderance  over 
the  desire  for  gain  and  enjoyment,  over  indifference  to  the  activi- 
ties of  the  community,  over  narrow  prejudices, — can  the  politics  of 
a  national  administration,  based  on  an  equal  suffrage,  be  administered 
in  a  similar  spirit.  The  morality  of  the  people  and  that  of  their 
statesmen  go  hand  in  hand.  It  is  but  the  passing  good  fortune  when, 
in  free  states,  the  government  of  a  people  is  better  than  their  own 
standard  of  morality.  And  only  in  this  constant  and  living  recip- 
rocal action  lies  the  ultimate  solution  of  the  riddle  considered  in 
this  address.    .     .     .^ 

(k)    Heinrich  von  Treitschke  (1834-1896)' 

The  state  is  the  people  legally  united  as  an  independent  power. 
Briefly  speaking,  by  the  word  "people"  we  understand  a  number 
of  families  permanently  living  side  by  side.  This  judgment  implies 
that  the  state  is  primordial  and  necessary,  that  it  exists  as  long  as 
there  is  a  history  of  mankind  and  that  it  is  no  less  essential  to 
mankind  than  speech  itself.* 

The  state  is  power  for  the  sole  purpose  of  asserting  itself 
toward  other  powers,  equally  independent.  War  and  the  admin- 
istration of  justice  are  the  first  tasks  of  even  the  most  barbaric 
state.  .   .   .^ 

In  history  we  meet  throughout  with  only  virile  characters;  his- 
tory is  not  for  sentimental  or  feminine  natures.  Only  brave  peoples 
have  a  secure  existence,  a  future,  an  evolution;  weak  and  cowardly 

'  Riimelin,  Ueber  das  Verhdltniss  der  Politik  zur  Moral — Reden  und  Aufsdtze, 
vol.  1,  p.  166. 

2  Ibid.,  pp.  170-171. 

•  Politik  (Vorlesungen  gehalten  an  der  Universitat  zu  Berlin  von  Heinrich 
von  Treitschke).  Zweite,  durchgesehne  Auflage  (Leipzig:  G.  Hirzel,  1899-1900, 
2  vols.). 

*  Treitschke,  Politik,  vol.  1,  p.  13. 
^Ibid.,  p.  29. 


Ixxiv  INTRODUCTION 

peoples  perish,  and  justly  so.  In  this  eternal  conflict  of  different 
states,  we  find  the  grandeur  of  history;  it  is  an  evident  un-reason 
to  wish  to  do  away  with  this  world  struggle.  Mankind  has  at  all 
times  found  this  to  have  been  so.' 

If  we  examine  more  closely  our  definition,  that  "a  state  is  the 
people  legally  united  as  an  independent  power,"  we  will  find  that 
we  may  shorten  this  definition  to  read  as  follows:  "The  state  is  the 
public  power  for  defense  and  offense."  Above  all,  the  state  is  power 
in  order  to  assert  itself;  it  is  not  the  totality  of  the  people  them- 
selves as  Hegel  assumed  in  his  deification  of  the  state.^ 

The  state  is  not  an  academy  of  fine  arts;  if  it  neglects  its  power 
in  favor  of  the  ideal  pursuits  of  mankind,  it  repudiates  its  own  nature 
and  perishes.  Repudiation  of  its  own  power  is,  indeed,  so  far  as  the 
state  is  concerned,  equivalent  to  the  sin  against  the  Holy  Ghost; 
to  follow,  from  purely  sentimental  reasons,  in  the  train  of  a  foreign 
state,  as  we  Germans  have  so  frequently  done  with  regard  to  Eng- 
land, is  indeed  a  mortal  sin.    .     .     .' 

The  real  nature  of  the  state  is  characterized  by  the  fact  that  it 
cannot  suffer  to  have  a  higher  power  over  itself.  How  proudly  and 
truly  statesmanlike  Gustavus  Adolphus  has  expressed  this  thought 
when  he  said:  "I  recognize  no  one  over  me  except  God  and  the 
sword  of  the  victor."  This  is  so  unreservedly  true  that  again  we 
see  forthwith  that  it  cannot  be  the  view  of  mankind  to  form  a  single 
political  power,  but  that  the  ideal  toward  which  we  are  striving 
is  a  harmonious  society  of  peoples,  who,  by  means  of  treaties  which 
they  freely  conclude  among  themselves,  set  restrictions  upon  their 
sovereignty  without  abrogating  it. 

Nor  can  the  spirit  of  sovereignty  be  inelastic;  it  is  flexibly  rela- 
tive like  all  political  conceptions.  For  its  own  sake,  every  state  will 
by  means  of  treaties  limit  its  sovereignty  in  certain  directions.  When 
states  enter  into  treaties  with  one  another,  they  restrict  somewhat 
their  absolute  power.  But  the  rule  will  still  hold,  for  every  treaty 
is  a  voluntary  restriction  upon  individual  power,  and  all  inter- 
national treaties  contain  the  clause:  ''rebus  sic  stantibus."  No 
state  can  bind  its  will  for  the  future  to  another  state.  The  state  has 
no  higher  judge  than  itself,  and,  therefore,  it  will  conclude  all  its 
treaties  with  the  above  tacit  reservation.  For  it  is  true  that  as  long 
as  there  shaU  be  an  international  law,  all  treaties  between  the  belliger- 
ent states  lapse  with  the  moment  of  declaration  of  war ;  as  sovereign, 

^  Treitachke,  Politik,  vol.  1,  p.  30. 

2  Ibid.,  p.  32.  •  Ibid.,  p.  34. 


INTRODUCTION  Ixxv 

each  state  has,  however,  the  indubitable  right  to  declare  war  when- 
ever it  sees  fit,  and  in  consequence,  every  state  is  then  entitled  to 
abrogate  any  treaties  it  may  have  concluded.  Upon  this  constant 
change  of  treaties  rests  the  progress  of  history;  every  state  must  see 
to  it  that  no  other  power  will  denounce  them  with  a  declaration  of 
war.  For  treaties  which  have  ceased  to  be  useful,  must  be  denounced, 
and  new  ones,  consonant  with  the  new  circumstances,  must  take  their 
places. 

All  this  makes  it  clear  that  the  international  treaties  which  limit 
the  power  of  a  state  are  not  absolute,  but  voluntary  self-restrictions. 
From  this  we  conclude  that  the  organization  of  an  international 
arbitral  court,  as  a  durable  institution,  is  incompatible  with  the 
nature  of  the  state.  At  all  events,  only  in  matters  of  second  or  third 
rate  importance  could  the  state  submit  to  such  arbitral  court.  There 
is,  moreover,  no  impartial  outside  power  to  judge  of  vital  matters. 
If  we  were  to  commit  the  folly  of  treating  the  Alsace-Lorraine  matter 
as  an  open  question  and  to  submit  it  to  an  arbitrator,  who  would 
really  believe  that  such  an  arbitrator  could  be  impartial?  It  is, 
furthermore,  a  matter  of  honor  for  a  state  to  settle  such  questions 
for  itself.  Therefore,  it  will  be  impossible  to  constitute  a  court  that 
shall  sit  in  judgment  over  peoples.  The  only  thing  we  may  look 
forward  to  is  that  international  treaties  may  become  more  frequent. 
But  until  the  end  of  history,  the  appeal  to  arms  will  maintain  its 
right ;  and  therein  lies  precisely  the  sacredness  of  war. 

We  have,  therefore,  seen  that  the  concept  of  sovereignty  is  flex- 
ible; but  we  are  not  to  infer  from  this  that  this  concept  is  a 
non-sense.  We  are  rather  to  determine  in  what  consists  the  inalien- 
able kernel  of  sovereignty!  Legally,  this  kernel  lies  in  the  authority 
to  determine  the  scope  of  one's  own  rights  of  sovereignty,  and  politi- 
cally in  the  appeal  to  arms.  An  unarmed  state  which  is  not  in  a 
position  to  draw  the  sword  when  it  sees  fit,  is  subject  to  the  higher 
power,  which,  in  its  stead,  has  the  right  to  declare  war.  To  speak 
of  a  war  sovereignty  in  times  of  peace  implies  an  obvious  contradictio 
in  adjecto.  A  state  admitting  the  claim  to  such  a  sovereignty  may  still 
be  called  a  kingdom  for  conventional  reasons  and  from  pure  flattery, 
but  science,  whose  first  duty  is  to  ascertain  the  truth,  shall  boldly 
speak  out  and  declare  that  in  the  nature  of  the  thing  itself  such  a 
country  is  no  longer  a  state. 

This,  therefore,  is  the  one  essential  criterion:  the  right  of  arms 
distinguishes  the  state  from  all  other  corporate  bodies,  and  whoever 
cannot  take  up  arms  for  himself  cannot  be  regarded  as  a  state,  but 


Ixxvi  INTRODUCTION 

only  as  a  member  of  a  federated  organization  of  states.  Already  we 
perceive  the  difference  between  the  crown  of  Prussia  and  the  other 
German  states,  namely,  that  the  King  of  Prussia  is  himself  the  war 
lord,  and  therefore,  that  Prussia  has  not  lost  its  sovereignty,  as  the 
other  states  have  lost  theirs.' 

In  matters  of  this  kind  we  may  not  follow  the  guidance  of  scholars, 
but  that  of  statesmen.  "When,  one  day,  Bismarck  observed  to 
"William  I  that  the  empire  would  not  give  its  consent  in  the  matter 
of  a  certain  political  decision,  the  latter,  in  a  moment  of  indignation, 
replied:  "What,  the  empire!  The  empire,  as  you  know,  is  merely 
an  extended  Prussia."  This  expresses  the  thing  in  trooper  fashion, 
but  it  is  true.- 

When  we  look  more  closely  into  the  matter,  it  becomes  quite  evi- 
dent, that  if  the  state  is  power,  then  only  that  state  which  is  really 
powerful,  meets  that  idea.  Thence  we  get  the  undeniably  ridiculous 
phase  which  we  perceive  in  the  existence  of  a  small  state.  Weakness 
is,  of  course,  not  itself  ridiculous;  but  that  other  weakness  which 
demeans  itself  as  power,  is  ridiculous.  In  small  states  there  develops 
that  beggarly  spirit  which  judges  the  state  by  the  taxes  which  it 
levies;  a  spirit  which  feels  that  if  the  state  does  not  repress  as  an 
egg-shell,  it  will  not  be  able  to  afford  protection,  and  that  the  moral 
possessions  which  we  owe  to  the  state  are  inestimable.  The  small 
state  exercises  a  destructive  influence  upon  the  spirit  of  its  citizens, 
because  it  generates  that  kind  of  materialism. 

Moreover,  the  small  state  lacks  absolutely  the  capacity  of  admin- 
istering justice  which  characterizes  the  great  state.    .    .    . 

Therefore,  when  all  things  have  been  considered,  we  come  to  the 
conclusion  that  the  large  state  possesses  the  nobler  parts.  This  is 
especially  true  with  regard  to  the  great  fundamental  functions  of  the 
state,  such  as  the  protection  afforded  through  its  arms,  and  the  pro- 
tection of  right.  Both  can  be  much  better  accomplished  by  the  great 
than  by  the  small  state.  The  small  state  cannot  wage  war  with  any 
prospect  of  success.    .    .     .* 

Furthermore,  the  economic  superiority  of  great  states  is  an  obvious 
fact.  In  organizations  on  a  vast  scale  greater  security  is  also  found. 
More  easily  than  the  small  state,  a  big  state  can  successfully  meet 
economic  crises;  for  instance,  a  failure  of  crops  can  hardly  extend 
over  all  of  its  parts.  Only  in  great  states  can  there  develop  a  real 
national   pride  which   is  a  mark  of  the  moral   thoroughness  of  a 

»Treit8chke,  Politik,  vol.  1,  pp.  37-39. 

2  ibid.,  p.  40.  *Ihid.,  pp.  43-44. 


INTRODUCTION  Ixxvii 

people ;  in  aggregations  on  a  large  scale  the  world- view  of  the  citizens 
becomes  freer  and  greater.' 

When  we  see  the  state  as  a  personality,  it  becomes  evident  that 
it  must  seek  its  goal  within  itself.  ...  On  sight  of  a  living  being, 
we  shall  not  confine  ourselves  to  inquire:  What  is  the  purpose  of 
that  being?  But  we  must  put  to  ourselves  the  further  question: 
What  is  the  moral  task  of  this  personality?  And  in  the  case  of  the 
state,  we  shall,  therefore,  have  to  inquire:  What  is  its  task  in  the 
world  of  civilization  ?  And  first  of  all :  What  are  the  national  boun- 
daries of  its  activity  ?  ^ 

The  second  essential  function  of  the  state  is  the  conduct  of  war. 
That  this  should  have  been  left  unconsidered  for  such  a  long  time, 
is  proof  of  the  fact  that  the  science  of  government,  evolved  by  civilian 
minds  only,  had  thoroughly  degenerated.  In  our  century,  since  the 
time  of  Clausewitz,  this  sentimental  conception  has  vanished;  its 
place  was,  however,  taken  by  a  one-sided  materialistic  conception, 
which,  after  the  fashion  of  the  Manchester  school,  looks  upon  man 
as  a  two-legged  being  whose  destiny  it  is  to  buy  cheap  and  to  sell  dear. 
That  this  conception  is  likewise  incompatible  with  war,  can  be  readily 
explained ;  only  after  the  experiences  of  the  later  wars,  a  more  whole- 
some view  of  the  state  and  of  its  military  power  has  gradually  arisen. 
Without  war  there  would  be  no  state.  All  states  we  have  any 
knowledge  of  came  about  as  the  result  of  wars;  the  protection  of  its 
citizens  by  armed  force  remains  the  first  and  most  essential  task 
of  the  state.  Therefore,  wars  there  will  be  to  the  end  of  history, 
as  long  as  there  is  a  multiplicity  of  states.  That  the  course  of  history 
should,  in  this  respect,  ever  change,  is  neither  to  be  inferred  from 
the  loss  of  human  thought  or  of  human  nature,  nor  is  it  in  any 
manner  whatever  to  be  wished  for.  The  blind  worshipers  of  an 
eternal  peace  commit  an  error  of  thought  when  they  isolate  the  state 
or  when  they  dream  of  a  universal  state,  which  we  have  already  found 
to  be  against  reason. 

As  we  have  furthermore  seen  that  it  is  impossible  to  conceive 
even  of  a  higher  judge  over  the  states,  which  in  their  very  essence 
are  sovereign,  it  is  likewise  impossible  to  conceive  of  the  world  as 
without  the  condition  of  war.  It  is  the  favorite  fashion  of  our  time 
to  point  to  England  as  especially  ready  for  peace.  But  England, 
as  we  well  know,  is  perpetually  waging  war ;  there  is  hardly  a  moment 
to  which  we  may  point  in  modern  history  when  England  has  not 

*  Treitschke,  Politik,  vol.  1,  pp.  44-45. 
2  Ibid.,  pp.  68-69. 


Ixxviii  INTRODUCTION 

been  obliged  to  fight  somewhere.  The  great  cultural  progress  of 
mankind  can  be  realized  by  the  sword  only  against  the  resistance  of 
barbarism  and  unreason.  Between  civilized  peoples,  war  remains, 
likewise,  the  form  of  the  process  by  which  the  claims  of  the  states 
are  made  valid.  The  proofs  evidenced  in  these  terrible  conflicts 
between  peoples  are  compelling  to  a  greater  extent  than  the  proofs 
evidenced  in  civil  processes.  In  theory  we  have  frequently  endeavored 
to  convince  the  small  states  that  Prussia  alone  can  be  the  leader  in 
Germany;  we  were  compelled  to  furnish  the  really  convincing  proof 
of  this  on  the  battlefields  of  Bohemia  and  by  the  Main.  .   .   .^ 

We  must  not  consider  all  these  things  by  the  light  of  the  student's 
lamp  only ;  the  historian  who  lives  in  the  world  of  the  Will  sees  forth- 
with that  the  demand  for  an  eternal  peace  is  in  its  essence  reaction- 
ary; he  sees  that  if  war  disappears,  all  movement  and  all  growth 
•will  disappear  from  history.  The  really  spiritless  degenerate  times 
have  ever  been  the  only  ones  in  which  men  have  toyed  with  the 
dream  of  an  eternal  peace.  There  have  been  three  such  periods  in 
modern  history.  In  the  first  place,  we  have  the  dismal  time  after 
the  peace  of  Utrecht,  after  the  death  of  Louis  XIV.  The  world 
seemed  to  be  breathing  afresh;  but  Frederick  the  Great  pointedly 
declared  that  these  years  were  a  period  of  general  degeneracy  in 
European  politics.  The  Holy  Roman  Empire  in  its  then  ridiculous 
position,  the  unfinished  Prussia  faced  with  the  problem  of  grovrth 
or  decline — all  these  immature  conditions  were  declared  moral  condi- 
tions by  the  apostles  of  reason.  The  elder  Rousseau,  the  Abbe  Castel 
de  Saint  Pierre,  and  still  others  came  forthwith  and  wrote  their 
foolish  books  about  eternal  peace.  The  second  epoch  during  which 
the  pipe  of  peace  was  again  being  smoked  generally,  arose  under 
similar  conditions.  After  the  Congress  of  Vienna  the  Viennese 
treaties  were  looked  upon  as  ratio  scripta;  it  was  held  to  be  reason- 
able and  moral  to  cripple  for  all  eternity,  two  noble  peoples,  the 
Italians  and  the  Germans.  We  are  living  now  in  the  third  epoch, 
again  after  a  great  war  which  seems  to  have  destroyed  idealism 
in  Germany.  Does  not  the  neighing  laughter  of  vulgarity  resound 
loud  and  shameless  when  anything  of  all  that  which  has  made  Ger- 
many great,  is  destroyed?  The  foundations  of  our  old  and  noble 
culture  are  now  being  destroyed;  all  that  which  once  made  us  an 
aristocracy  among  the  peoples,  is  being  scoffed  at  and  trampled  upon. 
This,  then,  is  certainly  the  proper  time  to  toy  once  more  with  the 
concept  of  an  eternal  peace.     As  for  the  rest,  it  is  scarcely  worth 

'Treitschke,  Politik,  vol.  1,  pp.  72-73. 


INTRODUCTION  Ixxix 

the  trouble  further  to  consider  this  matter;  the  living  God  will  see 
to  it  that  war  shall  ever  return  as  a  terrible  medicine  for  mankind/ 

And  the  economic  ravages  of  war  play  also  greater  havoc  with 
civilized  peoples  than  with  barbarians.  In  our  day,  a  war  may  have 
especially  hard  and  fearful  consequences  in  destroying  the  artificial 
system  of  credit.  If  a  conqueror  should  ever  enter  London,  the  effect 
would  be  terrible  beyond  anything  we  can  imagine.  The  threads 
which  bind  the  credit  of  millions  are  gathered  together  there,  and 
a  conqueror  as  inconsiderate  as  Napoleon  might  there  perpetrate 
devastations  of  which  we  can  altogether  have  no  idea.  From  the 
natural  repugnance  of  mankind  against  bloodshed  and  from  the  size 
and  quality  of  modern  arms,  there  necessarily  follows  that  wars 
must  become  rarer  and  shorter,  for  it  is  impossible  to  understand 
how  the  burdens  of  a  great  war  can  long  be  borne  in  their  present- 
day  conditions.  It  is,  however,  illusory  to  conclude  from  all  of  this 
that  wars  will  ever  entirely  cease.  Wars  cannot  and  should  not  cease 
so  long  as  the  state  is  sovereign  and  confronted  by  other  sovereign 
states.^ 

As  contrasted  with  the  conception  of  antiquity,  our  modern  views 
of  individualism,  adorned  with  various  appellations,  are  as  great  as 
the  difference  between  night  and  day.  The  modern  view  of  individual- 
ism starts  with  the  idea  that  the  state  should  be  satisfied  with  pro- 
tecting life  and  property  at  home  and  abroad,  and  to  this  restricted 
state  it  applies  the  name  of  "constitutional  state."  This  doctrine 
is  the  legitimate  child  of  the  doctrine  of  the  old  natural  law.  Accord- 
ing to  this  doctrine,  the  state  can  only  be  a  means  for  the  purposes 
of  the  existence  of  the  individuals,  something  which  we  have  already 
shown  to  be  contrary  to  reason.' 

The  complicated  activity  of  our  state  results  from  our  world 
position,  from  our  history  and  geographical  situation,  through  all  of 
which  we  are  pursuing  aims  which,  in  the  opinion  of  other  peoples, 
are  incompatible  with  each  other.  .  .  .  Moreover,  we  are  the  most 
monarchical  people  of  Europe;  at  the  same  time,  however,  we  must 
endeavor  to  harmonize  with  that  fact  a  respectable  popular  repre- 
sentation. We  have  solved  the  riddle  of  how  a  civilized  people  can 
also  be  a  people  in  arms;  and  we  desire  to  solve  the  even  greater 
riddle  of  how  a  rich  people  can  preserve  the  moral  benefits  of  an 
army  and  of  a  military  service.* 

When  we  look  upon  a  state  as  a  moral  community  which  from 

'  TreitBchke,  Politik,  vol.  1,  pp.  75-76. 

2  Ibid.,  p.  77.  » Ibid.,  pp.  78-79.  *  Ibid.,  p.  86. 


Ixxx  INTRODUCTION 

its  appointed  place  shall  cooperate  in  the  education  of  mankind, 
the  state  must  then  undoubtedly  be  subject  to  the  general  law  of 
morality.  Still,  we  constantly  hear  about  the  conflict  between  poli- 
tics and  morality.  This  general  aspect  of  the  matter  shows  clearly 
that  the  relation  between  the  two  cannot  be  so  very  simple  and 
evident.  .  .   .  ^ 

It  was  Maehiavelli  who  gave  expression  to  the  thought  that  in 
case  the  salvation  of  a  state  was  at  stake  one  should  not  stop  to 
inquire  if  the  means  resorted  to  are  or  are  not  permissible;  that  the 
state  must  be  preserved  and  that  afterwards  everybody  would  justify 
their  use.  ...  It  will  ever  remain  Maehiavelli 's  glory,  first,  for 
having  put  the  state  upon  its  own  feet,  and  in  questions  of  morality, 
for  having  freed  it  from  the  influence  of  the  church,  but  above  all, 
for  having  been  the  first  to  declare  that  the  state  is  power.   .    .    . 

This  genial  Florentine  was  the  first,  wuth  the  mighty  force  of 
his  intellect,  to  put  into  the  center  of  all  politics  this  great  thought 
that  the  state  is  power.  For  this  is  the  truth;  and  whoever  is  not 
virile  enough  to  look  this  truth  squarely  in  the  face  would  better 
leave  politics  alone.^ 

Now,  if  we  apply  this  standard  of  a  deeper,  and  really  Christian 
morality  to  the  state,  and  we  will  remember  that  the  nature  of  this 
great  collective  personality  is  power,  we  realize  at  once  that  it  is 
the  highest  moral  duty  of  the  state  to  uphold  its  power.  The  indi- 
vidual must  sacrifice  himself  for  a  higher  community  of  which  he  is 
a  member;  the  state  itself  is,  however,  the  highest  in  the  external 
community  of  man;  hence,  the  duty  of  self-effacement  cannot  apply 
to  it.  The  Christian  duty  of  self-sacrifice  for  something  higher  does 
not  apply  to  the  state,  because  in  the  history  of  the  world  there  is 
nothing  whatever  that  is  superior  to  it;  in  consequence  it  cannot 
sacrifice  itself  to  something  which  is  higher  than  itself.  Only  the 
state  clearly  beholds  its  destruction,  yet  we  give  it  praise,  when  it 
succumbs  with  sword  in  hand.  Sacrifice  for  a  foreign  people  is  not 
only  not  moral,  but  is  contrary  to  the  idea  of  self-assertion,  which 
is  the  highest  volition  of  the  state. 

From  all  of  this  there  results  that  it  becomes  necessary  to  differ- 
entiate between  public  and  private  morality.  As  the  state  is  power, 
the  rank  of  its  different  duties  must  necessarily  be  different  from 
the  rank  of  the  duties  of  the  individual  man.  A  number  of  these 
duties  which  devolve  upon  the  individual  cannot  be  considered  at  all 

^Treitschke,  Politik,  vol.   1,  p.  87. 
2  Ibid.,  pp.  89-91. 


INTRODUCTION  Ixxxi 

with  reference  to  the  state.  Its  highest  eommand  is  to  assert  itself; 
for  the  state  this  is  absolutely  moral.  It  must  therefore  be  said 
that  of  all  political  sins,  the  sin  of  weakness  is  the  most  reprehensible 
and  the  most  despicable.  It  is  the  sin  against  the  Holy  Ghost  of 
politics.  In  private  life  there  are  excusable  weaknesses  of  character. 
There  can  be  no  question  of  such  weaknesses  in  a  state;  the  state 
is  power,  and  if  it  repudiates  this  which  is  its  nature,  it  cannot  be 
too  thoroughly  judged.    .     .     . 

From  the  nature  of  the  state  as  a  sovereign  power,  it  further 
follows  that  it  can  recognize  no  arbitrary  authority  over  it  and,  there- 
fore, that  in  the  last  analysis,  its  legal  obligations  are  subject  to  its  own 
decision.  This  we  must  clearly  bear  in  mind,  so  that  in  great  crises 
we  may  not  judge  from  the  advocate's  philistine  point  of  view.  When 
Prussia  broke  the  treaty  of  Tilsit,  Prussia  was  wrong  from  the  point 
of  view  of  the  civil  law.  But  who  would  have  the  brazen  affront 
to  assert  now  that  it  did  wrong?  The  French  themselves  no  longer 
do  so.  This  is  likewise  true  of  international  treaties  which  are  not 
quite  as  unmoral  as  that  which  was  forced  upon  Prussia  and  France. 
Every  state,  therefore,  reserves  to  itself  the  right  to  be  the  judge  of  its 
own  treaties,  and  the  historian  cannot  in  such  cases  content  himself 
with  a  merely  formal  standard.  He  must  put  to  himself  the  deeper 
question  whether  the  unconditional  duty  of  self-preservation  does  not 
justify  the  state.' 

Everyone  knows  that  the  well  known  Jesuit  expression  is 
raw  and  radical  in  its  crudity;  but  no  one  can  deny  that  it  contains 
a  modicum  of  truth.  Unfortunately,  in  public  as  in  private  life 
there  are  numberless  cases  when  the  use  of  absolutely  irreproachable 
means  is  impossible.  And  if  the  use  of  irreproachable  means  is  pos- 
sible and  a  moral  goal  can  be  attained  through  moral  means,  the 
latter  are  to  be  preferred,  even  when  they  lead  more  slowly  and 
more  uncomfortably  towards  the  goal.^ 

Political  history  begins  with  a  system  of  small  states.  The 
next  development  witnesses  the  conflict  between  these  tribes  and 
the  combination  of  larger  masses  into  a  common  organization;  thus, 
conquest  and  subjugation  become  the  real  active  motive  for  the 
building  of  larger  states.  The  states  have  not  issued  from  the 
sovereignty  of  the  people,  but  were  created  against  their  will;  the 
state  is  the  self-determined  power  of  the  strongest  tribe. 

There  is  nothing  in  all  this  to  complain  of.     In  such  simple 

'  Treitschke,  Politik,  vol.  1,  pp.  100-102. 
2/6id.,  p.  105. 


Ixxxii  INTRODUCTION 

conditions  of  life,  the  physical  power  must  decide,  and  this  power 
of  the  victor  is  morally  justified,  because  it  makes  for  protection, 
and  in  this  way  it  works  beneficially.  .  .  .  Through  the  subsequent 
course  of  history  we  find  that,  of  all  the  powers  of  which  we  know, 
war  is  the  mightiest  and  the  most  efficient  for  building  up  nations. 
In  war  alone  a  people  is  woven  together  into  a  people,  and  the  exten- 
sion of  existing  states  results  in  most  cases  through  conquest,  even 
if  subsequently  the  results  of  the  armed  conflict  are  confirmed  by 
treaty.    .     .     .' 

That  federalistic  atmosphere  from  which  have  issued  political 
organizations  such  as  Switzerland  and  the  North  American  Union 
could,  therefore,  not  be  generated  within  our  territorial  possessions. 
Rather,  in  the  whirl  of  forces  and  counter-forces,  but  one  has  finally 
remained  as  the  real  and  living  force:  "Any  impartial  judge  cannot 
but  agree  that  ever  since  the  days  of  the  Great  Elector  the  political 
history  of  Germany  has  been  wholly  and  absolutely  the  history  of 
Prussia.  Every  clod  of  land  which  had  been  lost  through  the  sins 
of  the  ancient  empire,  and  has  been  won  back,  has  been  won  back 
through  Prussia.  Thenceforth,  the  political  strength  of  the  German 
nation  lay  in  that  state  as  surely  as  that  same  state  had  failed  for  a 
long  time  to  accept  its  ideal  forces,  nay,  had  almost  repelled  them. 

.  .  .  Against  the  will  of  all  Germany,  the  Prussian  state  cre- 
ated with  its  faithful  sword  a  constitution  which,  of  course,  could 
be  nothing  else  except  a  complete  subordination  of  the  smaller  states, 
a  subordination  of  the  conquered  to  the  victor,  although  the  consti- 
tution expressed  this  fact  in  generous  and  friendly  forms.  .  .  . 
Prussia  was  not  swallowed  up  in  Germany.  This  expression  which 
is  still  current  in  our  own  day,  states  the  very  opposite  of  that 
which  is  palpable  to  our  hands:  Prussia  extended  its  own  institu- 
tions over  the  rest  of  Germany. 

It  is  a  fact  that  it  required  all  of  the  fatuous  forces  of  the 
learned  German  pedagogy  to  establish  the  theory  which  may  be 
found  in  nearly  every  manual  of  German  constitutional  law,  to  the 
effect,  that  Prussia,  in  order  to  reserve  itself  for  its  victories  in 
Bohemia  and  by  the  Main,  has  committed  suicide  and  placed  itself 
in  the  same  situation  as  the  states  which  it  conquered.  It  is  said 
that  Prussia,  along  with  all  the  other  individual  German  states,  has 
been  swallowed  up  in  the  new  empire.  This  idea  is  so  extremely 
ridiculous  that  it  would  have  been  impossible  to  evolve  it  in  any 

^Treitschke,  Politik,  vol.  1,  pp.  113-114. 


INTRODUCTION  Ixxxiii 

other  country  of  the  world  but  our  own,  because  we  are  so  frequently 
en^lfed  by  the  flood  of  theory.    .     .     / 

What  would  become  of  Germany  if  the  Prussian  state  ceased 
to  be?  The  German  Empire,  in  such  case,  could  not  continue  to 
exist.  From  this  results  a  truth  unpleasant  to  most  people,  yet  not 
at  all  offensive  to  non-Prussian  people,  to  the  effect,  that  within  this 
German  Empire,  Prussia  alone  of  the  former  German  states  has 
preserved  its  sovereignty.  Prussia  alone  has  remained  a  sovereign 
state.  Prussia  has  not  lost  the  right  of  arms ;  nor  need  Prussia  per- 
mit other  states  to  curtail  its  sovereign  rights.  The  German  Emperor 
is  also  the  King  of  Prussia;  he  is  the  military  leader  of  the  nation, 
and  we  are  indulging  in  unavailing  hair-splitting  when  we  imagine 
cases  in  which  the  German  Emperor  and  the  King  of  Prussia  might 
come  into  conflict  with  one  another.^ 

It  was  an  error  of  the  old  political  science  when  it  regarded  the 
army  merely  as  an  instrument  of  diplomacy,  and  when  in  the  chapter 
dealing  with  foreign  politics,  it  assigned  to  the  army  a  subordinate 
place  in  its  system.  It  was  purely  and  simply  regarded  as  a  means 
of  diplomacy.  But  in  our  age  of  universal  military  service  this  idea, 
about  the  army  has  vanished.  Everyone  now  feels  that  the  army 
is  not  merely  a  means  for  attaining  the  aims  of  diplomacy,  but  that 
the  very  constitution  of  a  state  rests  upon  the  nation's  share  in 
bearing  arms.  For  the  state  is  maintained  by  the  physical  strength 
of  the  nation,  which  is  represented  by  the  army.  If  power,  within 
and  without,  is  the  nature  of  the  state  then  the  organization  of  the 
army  must  be  one  of  the  first  constitutional  questions  of  the  state. 
The  state's  innermost  character  is  determined  by  the  organization  of 
the  army,  dependent  on  whether  the  constitution  will  prescribe  uni- 
versal service,  organize  a  territorial  militia,  or  establish  conscription 
with  substitution,    .     .     .' 

Even  those  who  look  upon  the  army  as  an  evil,  must  in  any  case 
regard  it  as  a  necessary  evil.  If  the  existence  of  the  state  itself  is 
necessary  and  reasonable,  it  follows,  of  course,  that  it  must  assert 
itself  towards  other  states.    .     .     .* 

It  is  an  advantage  to  a  nation  to  have  a  strong  and  well  organ- 
ized army,  for  the  very  reason  that  the  army  is  not  only  intended 
as  a  means  which  shall  serve  its  foreign  policy,  but  because  a  noble 
nation  with  a  glorious  history  can  for  a  long  time  use  the  army  as  a 
weapon  for  maintaining  order,  and  because  it  forms  a  school  for 

'  Treitschke,  Politik,  vol.  2,  pp.  338-340. 

2/5id.,  pp.  343-344.  Uhid.,  p.  355.  *  Ihid.,  p.  357. 


Ixxxiv  INTRODUCTION 

the  really  virile  virtues  of  the  people  which  are  so  easily  lost  in  an 
age  bent  on  gain  and  luxury.' 

It  is,  therefore,  normal  and  reasonable  when,  by  its  physical 
strength,  a  great  nation  embodies  and  develops  the  essence  of  the 
state,  which  is  power,  through  an  organized  military  system.  And, 
as  we  have  lived  in  a  warlike  age,  the  very  sentimental  and  philan- 
thropic way  of  looking  at  these  things  has  passed  more  and  more 
into  the  background,  so  that,  even  as  Clausewitz,  we  regard  war  as 
the  continuation  of  politics  by  force.  All  the  peace-pipe  smokers  in 
the  world  will  never  succeed  in  bringing  the  political  powers  into 
agreement,  and  if  these  powers  are  not  agreed  among  themselves, 
then  the  sword  alone  can  decide  between  them.  We  have  learned  to 
know  the  moral  majesty  of  war  in  the  very  things  which  to  the  super- 
ficial observer  seem  brutal  and  inhuman.  That  for  the  sake  of  the 
Fatherland  we  must  overcome  our  natural  feeling  of  humanity,  that 
men  shall  murder  one  another  who  never  before  have  done  one  another 
an  injury  and  perhaps  respect  one  another  as  chivalrous  enemies, 
it  is  this  which  at  first  sight  seems  to  constitute  the  abhorrent  part  of 
war,  but  at  the  same  time  its  grandeur  as  well.  Man  shall  not  merely 
sacrifice  his  life,  but  even  natural,  deeply  justified  instincts  of  the 
human  soul;  he  shall  sacrifice  his  whole  soul  for  the  sake  of  a  great 
patriotic  idea;  and  it  is  this  which  constitutes  the  morally  sublime 
part  of  war.  When  we  further  examine  this  thought,  we  will  see  how, 
with  all  its  hardness  and  brutality,  war  weaves  a  bond  of  love  between 
men,  how  in  war  the  difference  between  classes  disappears,  how  the 
peril  of  death  links  man  to  man.  He  who  understands  history  knows 
full  well  that  when  scholars  study  these  matters,  they  start  out  with 
the  idea  that  the  state  is  only  intended  to  be  an  academy  of  arts 
and  sciences.  And  it  shall  be  this  also,  but  it  is  not  its  primary 
profession.  When  a  state  neglects  its  physical  strength  for  the  sake 
of  promoting  its  intellectual  strength,  then  it  perishes.- 

If  the  army  is  the  organized  political  power  of  the  state,  this 
organization  can  be  nothing  but  power  and  can  have  no  will  of  its 
own,  for  it  is  intended  for  the  carrying  out  with  unconditional  obedi- 
ence the  will  of  the  supreme  authority  of  the  state.* 

.  .  .  Since  that  time  (after  the  peace  of  the  Pyi'enees),  the  map 
of  our  hemisphere  has  become  much  more  natural;  its  center  has 
been  strengthened,  and  the  brilliant  thought  that  the  center  of  gravity 
of  Europe  should  be  found  in  the  middle  of  it,  has  become  a  reality. 

'Treitschke,  Politik,  vol.  2,  p.  360. 

2  Ibid.,  pp.  361-362.  »  Ibid.,  p.  365. 


INTRODUCTION  Ixxxv 

Through  the  establishment  of  the  German  Empire  a  calmer  atmos- 
phere has  prevailed  within  the  system  of  states  inasmuch  as  Prussia 
may  now  repress  its  ambition;  in  all  essentials,  Prussia  has  attained 
all  the  power  it  needs.' 

When  we  ask,  is  there  really  an  international  law?  we  are 
confronted  with  two  contradictory,  and  at  the  same  time  extreme 
and  untenable,  conceptions  of  the  international  life  of  states.  The 
first,  the  naturalistic,  whose  chief  representative  we  have  already 
found  in  Machiavelli,  starting  with  the  idea  that  the  state  is  power, 
purely  and  simply,  and  that  it  may  do  anything  which  may  be  useful 
to  it;  it  can,  therefore,  not  bind  itself  to  an  international  law;  its 
position  towards  other  states  is  mechanically  determined  by  the 
mutual  relations  of  strength.    .     .    . 

Alongside  of  this  view  we  meet  with  the  equally  false  and  moral- 
izing conception  of  liberal  theorists.  It  regards  the  state  as  a  good 
youngster  to  be  washed  and  combed  and  sent  to  school,  and  he  should 
have  his  ears  boxed  so  that  he  may  be  obedient ;  he  is  expected  to  be 
grateful  and  just,  and  God  knows  what  else  besides.  .  .  .  The 
theoretical  German  teacher  of  international  law  thinks  that  he  need 
only  formulate  a  few  principles  and  that  the  nations,  as  reasonable 
beings,  will  then  be  obligated  to  observe  them.  Ever  and  anon  he 
forgets  that  stupidity  and  passion  are  great  powers  in  history.  Who 
cannot  see  what  a  real  force  nationalistic  passions  have  become  again  in 
this  our  century!  And  whence  do  individual  men,  such  as  Rotteck, 
Bluntschli,  and  Heffter,  derive  their  authority  toward  states  in  such 
a  thing  as  "Thou  shalt"?  There  is  no  human  being  placed  so  higk 
that  he  could  impose  binding  prescriptions  upon  all  states;  he  must 
expect  to  find  that  his  arguments  are  overcome  and  modified  by  the 
living  life.  The  idea  that  there  is  some  imaginary  law  is  brought 
to  naught  in  that  living  life.  Only  a  positive  law  exists,  and  no 
theorist  can  invent  principles  which  shall  forthwith  pass  as  positive 
law.  As  long  as  the  conviction  about  the  truth  and  the  reasonable- 
ness of  certain  legal  principles  has  not  become  a  life  conviction  among 
the  people,  the  labor  of  science  can  only  be  preparatory  and  break 
the  way.  If  we  carry  the  abstract  conception  of  a  state  to  its  last 
analysis  a  supreme  power  on  earth,  endowed  with  extraordinary 
authority,  would  be  necessary.  .  .  .  But  there  shall  be  no  such 
authority  on  earth,  for  our  fair  world  shall  be  a  world  of  freedom 
as  well.    .     .     . 

If  then  we  have  established  the  fact  that  these  two  extreme  views 

'  Treitschke,  Politik,  vol.  2,  p.  540, 


Ixxxvi  INTRODUCTION 

cannot  be  carried  out  in  practice,  it  is,  on  the  other  hand,  quite  pos- 
sible to  establish  a  doctrine  of  international  law,  based  upon  history 
and,  therefore,  a  doctrine  which  can  be  put  into  practice.    .    .    . 

We  must,  therefore,  go  to  work  with  history  as  our  basis  and 
regard  the  state  as  that  which  it  really  is :  physical  power,  but  at  the 
same  time,  as  an  institution  which  shall  cooperate  in  the  education  of 
the  human  race.  As  physical  power,  the  state  will  naturally  be 
inclined  to  appropriate  unto  itself  as  many  necessaries  of  life  as  it 
may  regard  as  useful,  for  in  its  essence  the  state  is  an  intruder. 
But  every  state  will,  of  course,  of  its  own  accord,  have  certain  con- 
siderations for  the  neighboring  powers.  From  reasonable  considera- 
tions and  from  the  mutual  recognition  of  personal  advantage,  a  more 
definite  feeling  of  law  will  in  time  be  evolved.  It  will  be  found 
that  a  state  is  bound  to  the  communal  life  of  all  the  states  within 
which  it  is  situated,  and  that  it  must  in  one  way  or  another  be 
able  to  adapt  itself  to  this  communal  life.  This  consideration  rests 
upon  the  very  real  sentiment  of  reciprocity,  and  not  upon  love  for 
mankind.' 

Gortschakow  was  right  in  saying  that  neither  the  nations  con- 
stantly fearing  attack,  nor  the  very  powerful  nations  believing  them- 
selves at  all  times  ready  to  attack,  would  take  up  the  time  of  the 
last  conference  on  international  law.  The  expression  was  to  the 
point  and  can  be  reinforced  by  living  examples.  In  countries  like 
Belgium  and  Holland,  which,  to  the  great  detriment  of  the  science 
of  international  law,  have  unfortunately  been  for  a  long  time  the 
home  of  the  theories  of  international  law,  a  sentimental  conception 
of  international  law  has  arisen  because  these  countries  are  in  constant 
fear  of  being  attacked;  it  is  customary  in  the  name  of  humanity 
to  present  to  the  victor  demands  which  are  contrary  to  the  power 
of  the  state,  which  are  unnatural  and  unreasonable.  .  .  .  As  it  is 
certain  that  public  law  has  its  roots  in  practice,  it  is  equally  certain 
that  a  state  placed  in  an  abnormal  position  will  occasion  an  abnormal 
misconstruction  of  international  law.  Belgium  is  a  neutral  state; 
in  its  essence  it  is  a  crippled  state ;  and  how  then  could  sound  prin- 
ciples of  international  law  be  evolved  in  such  a  state?  I  beg  you  to 
bear  that  fact  in  mind  when  later  on  you  are  confronted  by  the 
voluminous  Belgian  literature  upon  this  subject.  .   .   . 

If  we  do  not  wish  to  be  mistaken  as  to  the  real  meaning  of  inter- 
national law,  we  must  constantly  bear  in  mind  the  fact  that  all  the 
paraphernalia  of  international  law  cannot  put  an  end  to  the  essence 

'  Treitschke,  Politik,  vol.  2,  pp.  542-546. 


INTRODUCTION  Ixxxvii 

of  the  state.  Never  can  the  state  regard  as  reasonable  any  demand 
made  upon  it  which  would  lead,  if  carried  out,  to  its  suicide.  Like- 
wise, every  state  must  remain  a  sovereign  in  the  society  of  nations; 
in  international  relations  as  well,  the  preservation  of  its  sovereignty 
is  its  highest  duty.  The  best  principles  of  international  law  are 
those  which  do  not  touch  upon  the  matter  of  sovereignty,  that  is  to 
say,  principles  of  international  etiquette  and  of  international  private 
law.' 

From  all  these  considerations  there  results  further  that  all  the 
restrictions  which  the  states  impose  upon  themselves  by  treaties,  are 
voluntary  and  concluded  on  the  tacit  reservation :  rehus  sic  stantibus. 
There  has  never  been  a  state  and  there  never  will  be  a  state  which 
upon  concluding  a  treaty  really  intends  to  preserve  it  throughout  all 
time.  No  state  will  ever  be  in  position  to  conclude  for  perpetuity  a 
treaty  containing  a  restriction  in  its  own  sovereignty.  It  always 
reserves  unto  itself  the  right  to  annul  such  a  treaty ;  it  will  be  valid 
only  so  long  as  the  present  circumstances  have  not  been  completely 
changed.  This  is  a  principle  which  has  been  looked  upon  as  inhuman, 
but  which  in  its  last  analysis  will  prove  to  be  the  contrary.  When 
the  state  realizes  that  all  its  treaties  possess  only  a  conditional  validity 
then  it  will  conclude  treaties  with  the  greatest  prudence.  History  is 
not  meant  to  be  looked  at  from  the  point  of  view  of  a  judge  of  a  civil 
suit.    .    .    . 

Politics  must  never  neglect  to  take  account  of  the  free  moral 
powers  of  the  people's  life.  No  state  in  the  world  is  able  to  renounce 
the  "I"  of  its  sovereignty.  When  conditions  are  imposed  upon  it 
which  cripple  it  and  which  it  cannot  prevent,  then  "the  breach  brings 
it  more  honor  than  the  observance  of  it."  It  is,  indeed,  one  of  the 
fine  things  about  history,  that  a  state  would  rather  suffer  material 
losses  than  to  allow  things  which  would  do  injury  to  its  honor.^ 

When  a  state  realizes  that  existing  treaties  no  longer  express  the 
real  relations  of  power  and  it  cannot,  by  peaceful  negotiation,  persuade 
the  other  state  to  yield,  then  the  international  suit,  that  is  to  say, 
war  sets  in.  The  declaration  of  war  by  a  state  in  such  position 
follows  from  the  consciousness  of  a  necessary  duty.  There  is  no  per- 
sonal greed  whatever  involved,  but  the  parties  interested  realize  that 
the  existing  treaties  no  longer  express  the  real  relations  of  power,  and 
because  we  cannot  agree  peacefully,  the  great  international  suit 
must  decide.* 

'  Treitschke,  Politik,  vol.  2,  pp.  548-549. 

2  Ibid.,  pp.  550-551.  *  Ibid.,  p.  552. 


Ixxxviu  INTRODUCTION 

No  international  court  of  arbitration  will  ever  succeed  in  removing 
war  from  the  world.  In  the  great  vital  questions  of  a  nation,  impar- 
tiality on  the  part  of  the  other  members  of  the  society  of  states  is 
absolutely  impossible.  They  must  take  sides,  precisely  because  they 
form  a  living  community,  and  because  of  the  manifold  and  mutual 
interests  they  are  either  bound  together  or  driven  apart.  If  Germany 
were  foolish  enough  to  allow  the  Alsace-Lorraine  question  to  be 
decided  by  a  court  of  arbitration,  what  European  power  could  be 
impartial  in  the  matter?  We  cannot  think  of  a  single  one  which 
could  be  impartial.  Thence  results  the  well  known  fact  that  inter- 
national congresses  are  indeed  capable  of  putting  the  results  of  war 
into  formulas  and  of  clothing  them  in  juridical  phrases,  but  that  they 
cannot  prevent  a  threatening  outbreak  of  war.  A  foreign  state  can 
be  impartial  in  matters  of  third-rate  importance  only. 

We  have  already  seen  that  war  can  be  justified  and  that  it  is 
moral;  we  have  seen  also  that  the  thought  of  an  eternal  peace  is  an 
impossible,  and  at  the  same  time,  an  immoral  idea.  It  is  unworthy 
of  man  to  regard  the  impracticable  as  practicable ;  but  a  purely  intel- 
lectual activity  has  only  too  often  an  enervating  influence  upon  the 
thinker.  War  cannot  be  banished  from  the  earth  so  long  as  the 
human  race  with  its  foibles  and^  passions  remains  what  it  is.  .  .  . 
Once  more,  it  must  be  repeated  that  the  violent  form  of  the  inter- 
national conflict  results  from  the  nature  of  the  state  itself.  In  the 
multiplicity  of  states  we  find,  once  and  for  all,  the  reason  for  the 
necessity  of  war,  Frederick  the  Great  said  that  the  dream  of  per- 
petual peace  is  a  phantom  which  every  man  casts  off  when  force  is 
marching  against  him ;  and  he  also  said  that  it  is  impossible  to  imagine 
an  international  balance  of  power  which  can  last. 

It  is,  however,  precisely  within  the  field  of  war  that  the  triumph 
of  human  reason  reveals  itself  most  clearly.  All  noble  nations  have 
felt  that  the  unfettering  of  physical  strength  in  war  needs  to  be 
regulated  by  definite  laws,  and  as  a  result,  international  rules  of 
warfare  have  been  elaborated  on  the  basis  of  reciprocity.  It  is  within 
the  sphere  of  the  rules  of  warfare,  which  fools  regard  as  barbarous, 
that  we  meet  with  the  greatest  triumph  of  the  science  of  international 
law.  In  modern  times  we  are  seldom  confronted  with  barbarous  viola- 
tions of  these  rules.  The  especially  fine  thing  about  international  law 
is  the  unmistakable  fact  that  these  rules  show  constant  progress  and 
that  through  a  universalis  consensus  alone  a  series  of  principles  of 
international  law  has  been  so  firmly  established  as  to  warrant  us  in  say- 
ing that  they  stand  as  securely  as  any  principle  in  the  private  law  of 


INTRODUCTION  Ixxxix 

any  state.  ...  In  the  course  of  the  centuries,  international  law 
has  reached  such  a  degree  of  understanding  of  justice  that  its  formal 
side  may  at  least  be  regarded  as  fully  secured.  The  publicity  of  our 
modern  political  life  is  contributing  much  to  that  end.  .  .  .  But 
the  whole  character  of  international  life  has  become  so  public  that 
any  gross  violation  of  international  law  will  immediately  arouse  great 
indignation  in  all  civilized  countries.' 

All  international  rights  are  guaranteed  by  international  treaties. 
It  is  clear  that  in  many  respects  these  international  treaties  must 
differ  from  the  contracts  entered  into  under  private  law.  They  diifer 
in  the  first  place  in  that  they  can  be  concluded  only  upon  a  basis 
of  loyalty  and  faith,  because  there  is  no  judge  who  can  compel  their 
observance.  .  .  .  Hence,  the  Athenians  understood  the  matter  cor- 
rectly when  they  contracted  their  international  agreements  only  for  a 
limited  time.  Christian  peoples  think  otherwise;  they  conclude  their 
treaties  for  all  time.  For  all  time,  however,  means  for  as  long  as 
the  relations  of  power  between  the  two  states  do  not  absolutely  change. 
This  we  must  emphasize  and  every  sober-minded  state  must  realize 
its  soundness;  for  then  treaties  will  be  more  secure,  and  every  state 
will  take  care  not  to  enter  into  treaties  which  can  be  readily 
denounced.  .  .  . 

.  .  .  The  life  of  nations  is  counted  by  centuries,  so  that  a  prescrip- 
tion period  could  enter  into  it  only  after  an  infinitely  long  period. 
Frederick  the  Great  was  absolutely  justified  in  laying  claim  to  the 
four  Silesian  duchies  for  his  state,  although  treaties  which  secured 
them  to  his  house  were  more  than  two  hundred  years  old.^ 

When  a  war  has  actually  begun,  the  uppermost  principle  of  justice 
by  which  that  war  is  conducted  must  be  directed  to  the  creation  of  a 
new  international  status  of  law  such  as  will  express  the  real  relation 
of  power  between  the  contending  parties,  and  which  must  then  be 
recognized  by  both.  It  is  right,  therefore,  to  wage  war  in  the  most 
effective  manner,  because  its  goal,  which  is  peace,  will  be  more  quickly 
reached.  Therefore,  we  must  endeavor  to  land  our  thrust  in  the  heart 
of  the  enemy.  The  sharpest  weapons,  except  when  they  cause  need- 
less suffering  to  the  wounded,  are  in  such  cases  absolutely  permissible ; 
nothing  in  all  this  can  be  changed  by  the  declamations  of  philan- 
thropists in  regard  to  explosive  shells  landing  in  the  powder  chamber 
of  wooden  battleships.  Such  weapons  as  shall  not  be  allowed  have 
been  decided  upon  by  agreement  of  the  states.     At  Russia's  behest, 

'  Treitschke,  Politik,  vol.  2,  pp.  553-555. 
2  Ibid.,  pp.   556-558. 


xc  INTRODUCTION 

explosive  bullets  for  small  arms  may  not  be  used.  It  is  permissible 
to  take  advantage  of  all  weak  points  shown  by  the  enemy.  A  state  is 
allowed  to  use  the  conspirator  and  agitator  of  its  enemy  for  its  own 
purposes.  .   .   . 

Nor  can  the  belligerent  state  be  denied  the  right  to  use  all  its 
troops  for  fighting  purposes  no  matter  whether  they  be  barbarians 
or  civilized  men.  In  this  matter  one  must  be  unbiased  in  order  to 
guard  against  prejudices  against  any  nation.  The  Germans  raised 
a  great  hue  and  cry  against  the  French  because,  in  the  last  war, 
they  set  the  Turcos  against  a  civilized  European  people.  Such  things 
may  indeed  happen  amid  the  passions  of  war;  science,  however,  must 
remain  calm  and  sober  and  declare  that  this  was  in  no  way  contrary 
to  international  law.  For  it  remains  ever  true  that  the  state  engaged 
in  war,  is  justified  and  bound  to  throw  all  of  its  physical  resources 
and  all  of  its  available  troops  into  the  battle.  How  is  it  possible  to 
draw  the  line  in  a  matter  of  this  kind?  Where,  for  instance,  would 
Russia,  which  has  so  many  attractive  races  within  its  boundaries, 
draw  the  line  in  this  matter?  The  physical  strength  of  a  state  may 
and  must  be  used  to  its  full  extent  in  war,  but  in  accordance  with 
the  chivalrous  usages  which  have  been  established  as  the  result  of 
much  experience  in  war.  It  is  true  that  the  claim  of  the  French  that 
they  march  at  the  head  of  civilization  was  put  in  a  curious  light 
through  the  use  of  such  troops.  This  leads  to  a  long  list  of  com- 
plaints because  demands  are  made  upon  a  state  which  it  cannot  pos- 
sibly comply  with.  In  the  national  wars  of  the  present  day  every  hon- 
est subject  is  a  spy.  Therefore,  the  expulsion  of  80,000  Germans  from 
France  in  1870  was  not  contrary  to  international  law.  But  the  French 
laid  themselves  open  to  criticism  in  this  matter  because  they  went 
about  it  with  some  brutality.  .   .   .^ 

Even  although  the  force  exerted  by  the  enemy  is  purely  military, 
still,  private  property  should  be  respected  to  the  widest  extent  when- 
ever it  is  possible  to  distinguish  between  civilian  property  and  prop- 
erty belonging  to  the  enemy  enrolled  in  the  army.  Requisitions  are 
permitted;  it  is  customary  to  give  receipts  in  exchange;  it  devolves, 
of  course,  upon  the  defeated  party  to  see  to  it  that  these  receipts 
are  subsequently  redeemed.  Destruction  of  private  property  as  such, 
of  which  the  devastation  of  the  Palatinate  by  Melac,  is  such  a  fear- 
ful example,  and  the  burning  of  villages  from  mere  wantonness, 
now  regarded  by  all  civilized  states  as  crimes  against  international 

*  Treitschke,  Politik,  vol.  2,  pp.  564-565. 


INTRODUCTION  xci 

law.  Private  property  may  be  injured  only  to  the  extent  in 
which  this  is  unavoidably  necessary  for  the  successful  issue 
of  the  war.  But  international  law  becomes  mere  clap-trap  when  we 
mean  to  apply  these  principles  to  barbarous  peoples.  A  negro  tribe 
must  be  punished  by  the  burning  of  its  villages;  without  this  one 
would  get  nowhere  with  such  people.  It  is  not  owing  to  humaneness 
nor  to  a  higher  regard  for  law,  but  to  shameful  weakness,  that  the 
German  empire  is  not  now  acting  in  accordance  with  these  principles.^ 
It  is  self-evident  that  every  state  is  not  merely  entitled  to  wage 
war,  but  to  declare  itself  neutral  in  the  wars  of  others,  in  so  far  as 
material  conditions  permit  of  a  declaration  of  neutrality.  If  a  state 
is  not  in  position  to  uphold  its  neutrality,  then  it  is  mere  mockery 
to  speak  of  its  neutrality.  Neutrality  needs  defenders  as  much  as 
do  the  respective  belligerent  states.  Every  armed  soldier  who 
crosses  the  frontier  must  be  disarmed  by  the  neutral  state;  if  the 
latter  is  unable  to  do  so,  belligerent  states  are  under  certain  circum- 
stances justified  in  no  longer  recognizing  the  neutrality  of  the  state, 
even  if  it  let  the  armed  enemy  enter  a  single  village.^ 

(1)  Kriegsbrauch  im  Landbriege  (1902)^ 

A  vigorously  prosecuted  war  can  be  directed  not  merely  against 
the  fighting  force,  of  the  enemy  state  and  its  fortified  places,  but 
such  a  war  should  and  must  seek  to  destroy  the  total  spiritual, 
material,  and  auxiliary  resources  of  the  state.  Humanitarian  claims, 
such  as  the  sparing  of  life  and  property,  can  only  be  considered  in  so 
far  as  the  nature  and  the  purpose  of  the  war  permit. 

Therefore,  if  the  ' '  reason  for  war ' '  permits  every  belligerent  state 
to  use  all  means  which  make  it  possible  to  realize  the  object  of  the 
war,  still,  practice  has  taught  that  it  is  to  one's  own  interest,  on  the 
one  hand,  to  restrict  the  use  of  certain  means  of  war,  and,  on  the 
other  hand,  to  renounce  the  use  of  others  altogether.  .   .   .* 

But  as  the  trend  of  thought  of  the  past  century  was  dominated 
by  humanitarian  considerations  which  frequently  degenerated  into 
sentimentality  and  unmanly  emotionalism,  attempts  were  not  wanting 
to  influence  the  development  of  the  usages  of  war   in  a  manner 

'  Treitschke,  Politik,  vol.  2,  pp.  568-569. 
'  Ibid.,  p.  572. 

*  Kriegsbrauch  im  Landkriege  (Kriegsgeschichtliche  Einzelschriften.  Her- 
ausgegeben  vom  Grossen  Generalstabe.  Heft  31.  Berlin,  1902).  J.  H.  Morgan 
has  translated  and  edited  this  book  under  the  title  The  War  Book  of  the  Great 
General  Staff  of  the  German  Army   (New  York,  1915),  pp.  1-2. 

*  Kriegsbrauch  im  Landkriege,  pp.   1-2. 


xcii  INTRODUCTION 

not  at  all  compatible  with  the  nature  of  war  and  its  ultimate 
object.   .    .    . ' 

A  deep  insight  into  the  history  of  war  will  guard  an  officer 
against  exaggerated  humanitarian  considerations;  it  will  teach  him 
that  war  cannot  be  waged  without  recourse  to  certain  rigors ;  rather, 
that  the  only  true  humanity  frequently  lies  in  their  ruthless  appli- 
cation  ^ 

Every  means  of  war,  without  which  the  object  of  the  war  cannot 
be  attained,  may  be  resorted  to;  on  the  other  hand,  every  act  of 
violence  and  of  destruction  not  required  for  the  realization  of  the 
object  of  the  war  is  to  be  condemned,^ 

From  these  generally  valid  and  fundamental  principles  it  follows 
that  wide  limits  are  left  to  the  subjective  freedom  and  will  of  the 
commander,^ 

(m)    Friedrich  von  Bernhardi  (1849-)^ 

Whoever  desires  to  direct  the  policy  of  a  great  state  must  have 
a  perfectly  clear  idea  of  the  aims  which  he  pursues.   .    .    .* 

It  is  especially  important  in  the  times  in  which  we  are  living 
that  the  German  people  should  understand  clearly  the  aims  which 
they  are  pursuing  and  the  tasks  which  they  propose  to  themselves; 
for  the  German  people  stand  undoubtedly  at  a  turning  point  in  their 
history.  "World  power  or  ruin"  is  the  decisive  question  which  calls 
for  an  answer.  In  the  equivocal  position  in  which  we  are  now  placed, 
that  is  to  say,  between  the  status  of  a  manifold  restricted  European 
Continental  power  and  the  status  of  a  World  Power  entitled  and 
capable  of  securing  everywhere  to  Germanism  its  justified  place,  we 
cannot  persist  for  much  longer.  "This  thing  must  be  decided," 
Frederick  the  Great  would  say;  for  there  is  no  standstill  in  political* 
evolution.  ...  In  the  midst  of  all  the  fine-sounding  words  of 
statesmen  and  the  Utopian  speeches  of  the  apostles  of  peace,  and  in 
spite  of  the  phantom-fetters  by  which  European  diplomacy  endeavors 
to  shackle  the  stupendous  forces  operating  in  the  life  of  the  nations, 
"I  already  hear  God's  advancing  steps,  tearing  them  asunder  amid 
great  calamity. ' '  ^ 

'  Kriegsbrauch  im  Landkriege,  p.  3. 
2  Ibid.,  p.  9. 

*  Unsere  Zukunft,  ein  Mahnwort  an  das  deutsche  Volk  (Stuttgart  and  Berlin; 
1912),  which  appeared  the  year  after  his  larger  work,  Deutschland  und  der 
ndchste  Krieg,  had  been  published.  The  later  book  can  be  considered  as  an 
abridgment  of  the  earlier,  and  the  author's  matured  views  are  there  stated  with 
greater  clearness,  force,  precision,  and  positiveness. 

*  Bernhardi,   Unsere  Zukunft,  p.   1.  •  Ibid.,  p.  3. 


INTRODUCTION  xciii 

The  German  people  must  take  thought  of  themselves  and  of  their 
power;  they  must  acquire  that  self-confidence  which  corresponds  to 
this  power,  so  that  as  a  whole  they  may  have  the  courage  to  strive 
for  an  enlarged  circle  of  action  and  for  a  greater  future  such  as  the 
foremost  minds  of  the  nation  have  already  contemplated.  The  mir- 
rored image  of  its  real  greatness  must  be  held  up  before  the  German 
nation  so  that  it  may  thereby  recognize  the  necessity  of  a  further 
development  and  strengthen  its  will  for  the  deed.^ 

Sure  of  our  strength  and  of  the  value  of  our  civilization,  we 
Germans  must,  therefore,  by  all  means  strive  to  secure  the  political 
power  which  corresponds  to  our  actual  importance  and  to  which  we 
are  entitled.  It  is  certain  that  in  this  striving  we  shall  meet  with 
powerful  opposition.  On  the  other  hand,  it  ought  to  be  clear  to  us 
that  if  we  are  not  staking  our  everything  in  order  that  we  may  become 
a  real  and  very  influential  World  Power,  we  wiU  not  be  able  to  main- 
tain our  present  position  in  the  world.  If  our  political  power  declines 
because  we  dare  not  assert  it  by  acts  or  by  deeds,  it  will  not  be  long 
then  before  our  economic  importance  will  retrogress,  and  as  in  former 
times,  the  excess  of  our  population  will  strengthen  foreign  powers, 
and  as  a  result  of  our  political  decline,  our  intellectual  power  will 
also  lose  its  freshness  and  its  expansive  force.  It  is  only  upon  the 
enlarged  stage  of  world  politics  that  we  will  be  able  to  solve  our 
highest  intellectual  and  moral  tasks;  as  an  exclusively  European 
Continental  power  and  as  a  Colonial  power  by  the  grace  of  England, 
we  would  sink  back  into  that  position  of  utter  insignificance  which 
we  occupied  before  1866.  "World  power  or  ruin"  is  the  watch- 
word forced  upon  us  by  the  evolution  of  history.  There  is  no 
alternative.^ 

The  general  aim  of  Germany's  cultural  and  political  tasks  has 
been  firmly  established.  Whoever  recognizes  the  importance  of  Ger- 
manism in  the  field  of  human  activities,  an  importance  to  which, 
in  accordance  with  its  achievements  in  the  past,  it  is  entitled  in  the 
future,  will  readily  understand  that  Germanism  must  expand  into 
a  world  power,  in  order  to  procure  for  the  German  people  the  neces- 
sary space  for  expansion  and  to  secure  to  Germanism  and  to  the 
German  intellect  that  influence  in  the  world  to  which  they  are  entitled. 
That  is  our  watchword,  and  as  the  Star  of  Bethlehem  once  pointed 
out  to  the  Wise  Men  of  the  East  the  '\Vay  to  the  desired  goal,  even 
so  shall  this  watchword  bear  a  light  before  us  on  the  way  to  a  great 
and  influential  future. 

•  Bernhardi,   Unsere  Zukunft,  p.  7.  *  Ibid.,  pp.  25-26. 


xciv  INTRODUCTION 

This  goal  cannot,  however,  be  reached  all  at  once.  It  must  be 
won  through  self-sacrificing  and  self-denying  labor.^ 

The  task  ,  .  .  consists  in  fostering,  in  accordance  with  their 
relative  value,  all  the  elements  which  are  necessary  and  useful  for 
the  progress  of  the  whole  nation,  and  at  the  same  time,  within  these 
limits,  to  secure  for  the  individual  the  greatest  possible  degree  of 
cultural  possessions  and  of  personal  freedom.  "Every  expansion  of 
the  activities  of  the  state,"  said  Heinrich  von  Treitschke,  "is  a  bless- 
ing and  is  reasonable  as  long  as  it  stimulates  the  independent  action 
of  free  and  reasonable  men;  it  is  an  evil  if  it  stifles  and  stunts  the 
independent  action  of  free  men." 

In  many  quarters  the  view  is  held  that  this  ideal  can  be  realized 
only  in  the  organized  republic,  because  only  under  such  an  organiza- 
tion the  individual  can  freely  develop,  and  because  the  equality  of 
all  individuals  finds  actual  expression,  while  in  every  form  of  mon- 
archy there  is  a  tendency  towards  servility.  As  against  this  view  it 
should  be  observed  that  the  republic  ever  leads  to  the  rule  of  the 
majority,  to  the  oppression  of  the  minority,  and  that  it  lacks  the 
power  which  might  restrain  the  abuse  of  influential  personalities  over 
the  ignorant  masses,  and  further,  that  servility  may  luxuriate  under 
a  republican  as  well  as  under  any  other  form  of  government.  In 
monarchies,  on  the  contrary,  there  is  an  independent  power,  a  power 
essentially  impartial,  which  stands  above  the  strivings  of  the  party, 
which  recognizes  the  highest  of  the  minority  and  is  able  to  assert 
the  will  of  the  state  with  greater  logic  and  with  greater  unity  than 
the  ever  changing  and  vacillating  majorities  of  a  republic.  History 
teaches  that  democracy  is  ever  in  danger  of  degenerating  into  dema- 
gogy; that  the  power  of  the  state  is  controlled  by  the  greedy  and 
incalculable  instincts  of  the  masses  and  thus  leads  to  moral  and 
political  collapse,  while  in  a  constitutionally  restricted  monarchy 
the  power  of  the  state  is  able  to  combat  these  destructive  elements 
without  the  danger  of  such  power  being  abused  either  by  an  indi- 
vidual or  by  a  class. 

In  opposition  to  the  radical  political  efforts  of  our  day,  it  becomes, 
therefore,  one  of  the  most  important  cultural  tasks  of  the  German 
people  to  strengthen  the  monarchical  idea,  and  to  bring  it  to  general 
acceptance.  If  we  were  to  repudiate  this  idea,  which  has  such  a 
firm  historical  foundation  among  us,  which  we  have  inherited  and 
of  the  correctness  of  which  we  are  convinced,  then  in  view  of  the 
individualistic  character  of  the  German  people,  we  would,  in  all 
*  Bernhardi,  Vnsere  Zukunft,  p.  27. 


INTRODUCTION  xcv 

probability,  sink  into  complete  anarchy  and  perish  as  a  civilized 
nation.  No  nation  more  than  our  own  needs  a  more  coherent  and 
closer  unity  in  order  to  organize  the  opposing  powers  under  one  will. 

This  short  survey  of  our  cultural  tasks  shows  that  they  can  be 
solved  only  by  great  spiritual  effort,  such  as  from  time  immemorial  has 
been  the  special  attribute  of  the  German  people.  German  science 
must  therefore  remain  conscious  of  its  whole  duty  and  contribute, 
with  ever  renewed  energy,  to  the  solution  of  the  great  world  ques- 
tions and  scientifically  to  establish  the  moral  duties  of  the  people. 
.At  the  same  time,  it  must  endeavor,  with  all  means,  to  expand  the 
mastery  of  men  over  nature,  and  thus  to  advance  our  economic  devel- 
opment; but  in  all  this  striving,  it  must  not  forget  its  highest  task, 
which  consists  in  ever  laying  new  foundations  for  the  strengthening 
and  expanding  of  ideal  aims  and  indefatigable  effort.    .    .    . 

To  accomplish  this  purpose,  three  powerful  auxiliary  means  are 
available  to  the  state:  the  school,  the  press,  and  universal  military 
service.' 

These  thoughts  bring  us  immediately  to  a  consideration  of  Ger- 
many's tasks  which  lie  exclusively  within  the  sphere  of  foreign 
policy. 

As  we  have  already  shown  elsewhere,  Germany  occupies  a  very 
dangerous  political  position.  On  nearly  every  side  we  are  surrounded 
by  hostile  states  whose  united  populations  exceed  that  of  Germany 
and  which  oppose  all  efforts  of  our  foreign  policy  with  a  determined 
hostility  and  constantly  confront  us  with  the  choice  either  to  fight 
or  to  renounce.  It  is,  therefore,  our  first  duty  to  make  an  end  of 
this  state  of  affairs ;  we  must  regain  our  political  freedom,  before  we 
can  act  as  a  World  Power,  we  must  establish  our  continental  position 
as  a  power  upon  foundations  that  are  unshakable  by  extending  our 
sphere  of  power  in  Europe  itself.  In  saying  this,  I  do  not,  of  course, 
have  in  mind  a  policy  of  conquest;  such  a  policy  would  be  against 
the  spirit  of  the  times  and  contrary  to  our  true  advantage;  for  in 
Europe  we  could  acquire  only  territories  whose  subjugated  popu- 
lations would  ever  meet  us  in  a  spirit  of  hostility.  But  it  seems 
necessary,  after  all,  to  have  a  final  reckoning  with  France,  and  it 
seems  furthermore  quite  possible  to  enlarge  the  Triple  Alliance  into 
a  central  European  Union  of  States  whose  component  elements  would 
retain  their  complete  independence ;  thus  we  would  not  merely  improve 
our  military  position  in  essential  respects,  but  give  as  well  a  broader 
basis  to  our  over-sea  policy. 

'  Bernhardi,   Unsere  Zukimft,  pp.  31-33. 


xcvi  INTRODUCTION 

This  Union  of  States  would  have  to  join  the  Triple  Alliance,  and 
the  latter  itself  broadened  beyond  the  scope  of  action  which  it  has 
hitherto  maintained.  Its  purely  defensive  professions  have  been 
proven  sufficient  in  order  to  do  justice  to  the  interests  of  the  parties 
composing  it.  These  professions  must  be  extended  into  a  defensive 
and  offensive  alliance  in  accordance  with  a  very  definite  regulation 
of  the  interests  which  are  to  be  regarded  as  common  to  all  concerned. 

Only  when  we  shall  have  attained  this  goal  and  freed  ourselves 
from  the  condition  of  constraint  which  now  prevents  us  from  taking 
independent  action,  only  then  can  we  think  of  attending  to  the 
second  task  which  accrues  to  us  by  reason  of  historic  conditions: 
the  extension  of  our  colonial  empire  and  the  strengthening  of  our] 
world  position. 

If  we  would  assure  to  Germanism  the  respect  to  which  it  is 
entitled,  and  if  we  would  win  for  German  intelligence,  for  German 
labor  and  German  idealism,  that  influence  to  which  they  are  entitled 
by  their  civilizing  importance,  then  we  must  secure  a  firm  footing 
on  this  earth  and  everywhere  create  points  of  support  for  our  civil- 
izing labor.  .   .   .^ 

Finally,  however,  although  late,  we  have  recognized  the  impor- 
tance of  colonial  activities  for  the  civilization  of  a  people;  that 
colonization  which  preserves  emigrants  for  their  nationality  and 
thereby  creates  new  centers  for  the  civilization  of  this  people,  has 
become  a  factor  of  immeasurable  importance  for  the  future  of  the 
world.  It  will  depend  on  colonization  to  what  extent  every  people 
will,  through  the  white  race,  take  part  in  the  mastery  of  the  world; 
and  it  is  quite  conceivable  that  a  country  without  colonies  will  no 
longer  be  counted  among  the  great  Powers  of  Europe,  however  power- 
ful it  may  otherwise  be. 

Thus,  if  only  for  the  general  interest  of  civilization,  it  is  our  duty 
to  strive  to  enlarge  our  colonial  possessions  and  thus,  although  not 
politically,  yet  nationally,  to  gather  together  all  Germans  scattered 
throughout  the  whole  world,  and  to  regard  German  civilization  as 
the  most  necessary  factor  of  human  progress;  it  is,  furthermore,  an 
imperative  necessity  that  we  should  fulfill  this  duty.  By  all  means 
we  must  strive  to  acquire  new  land,  because  we  must  politically  pre- 
serve for  the  German  Empire  the  millions  of  Germans  who  will  be 
born  in  the  future,  and  even  under  foreign  climes  procure  for  them 
not  only  food  and  labor,  but  a  German  life  as  well.^ 

*  Bernhardi.   Unsere  Zukunft,  pp.  39-40. 
a  Ibid.,  p.  42. 


INTRODUCTION  xcvii 

"Security  and  enlargement  of  power";  in  these  two  words  we 
may  summarize  our  international  political  tasks.  In  order  to  be  able 
to  judge  of  the  manner  by  which  the  object  thus  outlined  may  be 
achieved,  we  must  become  acquainted  with  the  means  available  to 
German  statecraft  for  its  work,  and  we  must  at  the  same  time  con- 
sider the  obstacles  which,  in  present  world  conditions,  we  have 
to  overcome.  Finally,  we  must  clearly  realize  that  the  struggle  for 
high  purpose,  that  the  striving  for  an  enlarged  activity,  in  short,  that 
war  itself  is  a  means  for  the  progress  of  civilization. 

The  intellectual  and  moral  powers  which  in  the  end  are  most 
important,  cannot  thrive  and  grow  in  the  undisturbed  quiet  of  a 
secure  peace;  they  thrive  and  grow  in  the  storm  and  stress  of  a 
great  stirring  time,  under  the  influence  of  an  active  self-confident 
policy  which  places  great,  common  aims  before  the  people,  which 
challenges  self-sacrifice  and  which  is  not  afraid  of  danger  when  the 
future  and  ideals  of  a  noble  people  are  at  stake.  Such  a  policy  is 
the  best  educator  of  the  people  to  patriotism,  to  moral  earnestness 
and  great  successes.^ 

In  view  of  the  fact  that  the  general  law  of  humanity,  which,  to 
be  sure,  can  never  be  codified,  stands  higher  than  all  agreements 
based  on  formal  law,  it  follows  that  international  agreements  have 
only  a  conditional  value,  that  is  to  say,  they  are  valid  only  so  long 
as  the  conditions  will  at  least  generally  remain  like  those  under 
which  they  were  concluded.  It  cannot  be  demanded  of  any  state 
that  it  stake  its  own  existence  for  the  sake  of  a  formal  legal  obliga- 
tion, if  such  state  can  better  and  more  securely  maintain  its  existence 
in  any  other  way. 

Now,  when  by  the  assertion  of  the  question  of  right,  an  agree- 
ment between  states  cannot  be  reached,  the  statesman  has  actually 
nothing  else  left  but  to  appeal  to  might  and  to  endeavor  to  find 
out  how  much  he  can  accomplish  when  he  throws  the  power  of  the 
state  into  the  balance.  This  may  sound  contradictory,  in  view  of  the 
numerous  negotiations  which  apparently  take  place  in  peaceful 
fashion  between  the  different  states:  it  is  true,  nevertheless,  and  has 
always  been  recognized  by  all  true  statesmen.   .    .    .^ 

It  is  clear,  furthermore,  that  actually  existing  and  effective 
power  is  always  the  decisive  factor  in  all  negotiations,  that  it  is, 
therefore,  all-important  for  every  state  which  desires  to  assert  itself 
in  international  relations  and  to  enlarge  its  sphere  of  influence,  to 

'  Bernhardi,  Unsere  Zukunft,  p.  43. 
'  Ibid.,  pp.  50-51. 


xcviii  INTRODUCTION 

increase  its  effective  means  of  power,  that  is  to  say,  its  army,  its 
navy,  and  its  finances.    .    .    , 

The  statesman  who  should  deny  the  relation  of  interdependence 
between  the  defensive  power  and  policy,  and  who  should  not,  although 
he  does  not  say  so,  constantly  rely  upon  the  living  forces  of  the  state, 
could  never  reckon  upon  success,  if  he  were  to  enter  the  lists  with 
a  more  cautious  opponent.^ 

If  in  diplomatic  negotiations,  in  the  course  of  which  we  show 
our  reliance  upon  our  armed  strength,  we  do  not  succeed  by  peaceful 
means  either  in  carrying  our  point  or  in  adjourning  the  decision: 
if,  for  instance,  in  case  of  serious  differences  concerning  a  question 
of  territory,  we  cannot  obtain  its  neutralization  or  the  preservation 
of  the  status  quo,  then  we  must  go  to  war  and  defend  our  justified 
claims.  The  stronger  our  armed  forces  are,  the  greater  is  the  proba- 
bility that  we  shall  be  successful.  Besides,  the  better  our  army  and 
navy  are  organized,  the  more  highly  developed  is  the  military,  moral, 
and  mental  strength  of  the  nation  and  the  greater  is  the  confidence 
in  the  political  determination  of  Germany  among  her  allies,  the  more 
likely  will  be  Germany's  victory. 

War  is  the  continuation  of  policy  with  other  means;  at  the  same 
time,  it  is  the  most  effective,  even  although  the  most  dangerous  means 
of  policy.  It  may  even  be  asserted  that  the  possibility  of  war  as 
one  of  the  extreme  means,  is  a  necessary  quality  implied  in  the  idea 
of  policy.  It  is  impossible  to  imagine  a  foreign  policy  without  the 
possibility,  under  certain  circumstances,  of  an  appeal  to  arms. 
Between  states  unable  to  come  to  a  peaceful  settlement  of  opposing 
interests,  there  is  no  other  gauge  than  war,  and  only  a  clear  idea  of 
the  disadvantageous  consequences  which  may  result  from  war,  can 
induce  a  state  to  sacrifice  a  part  of  its  most  valuable  interests  to  its 
opponent. 

This  view  of  the  matter  has,  to  be  sure,  not  been  accepted  gen- 
erally. Even  in  many  of  the  leading  circles  the  erroneous  view  is 
held  that  real  political  advantages  can  be  obtained  through  negotia- 
tions only,  that  is  to  say,  that  one  may  persuade  the  opponent  to 
sacrifice  his  own  interests;  and  in  numerous  social  strata  there  is  a 
manifest  striving  to  banish  war  altogether  from  international  life 
and  to  replace  it  with  international  legal  organizations  and  courts 
of  arbitration.  These  people  think  that  war  is  barbarism  which  causes 
untold  misery  to  mankind;  that  war  opposes  right  through  violence 
and  arouses  the  brutal  instincts  of  man;  that  it  is  in  contradiction 

^  Bernhardi,  Vnsere  Zukunft,  p.  53. 


INTRODUCTION  xcix 

to  the  Christian  law  of  love,  and  therefore,  that  it  must  be 
characterized  as  unworthy  of  a  modern  and  progressive  civilized 
state.  ... 

We  must  deprive  this  propaganda  of  all  its  props.  We  must 
restore  the  moral  justification  and  political  importance  of  war  in 
the  minds  of  the  public.  Its  high  significance  as  the  mightiest  pro- 
moter of  civilization  must  be  properly  and  generally  recognized. 
We  must  realize  that  economic  and  personal  interests  alone  must 
never  be  the  decisive  factor ;  that  moral  possessions  and  not  material 
possessions  are  the  ones  which  it  is  truly  worth  while  striving  for, 
and  that  sacrifices  and  suffering  in  the  interest  of  a  great  cause 
place  man  on  a  higher  plane  than  luxury  and  the  greedy  snatching 
after  sensuous  objects;  in  short,  that  war  for  ideal  purposes  or  for 
the  self-assertion  of  a  noble  people  should  not  be  regarded  as  bar- 
barism, but  as  the  highest  expression  of  true  civilization;  and  as  a 
political  necessity  in  the  interest  of  biological,  social,  and  moral 
progress.' 

A  continuous  struggle  for  possession,  for  power  and  mastery 
dominates  the  relations  between  states,  and  right  is  generally 
respected  only  in  so  far  as  it  can  be  made  to  coincide  with  it.  While 
within  the  state  the  social  struggle  is  regulated  by  law  and  by  the 
public  authority,  there  is  no  similar  power  of  any  sort  which  might 
act  in  the  same  way  with  regard  to  the  society  of  states:  there  is 
neither  a  law  of  humanity  nor  a  central  power  which  might  settle, 
moderate,  or  promote  the  interests  of  the  parties  involved.  Therefore, 
when  irreconcilable  questions  of  interest  come  into  conflict,  there  is, 
in  the  last  analysis,  nothing  left  but  war  to  remedy  that  which  is 
wrong  and  to  afford  the  conditions  for  existence  of  which  the  forces 
of  a  promising  people  are  in  need. 

If  men  and  states  everywhere  would  act  unselfishly,  this  necessary 
result  could  be  prevented.  That  would,  however,  predicate  the  condi- 
tion of  things  which  can  neither  be  expected  nor  hoped  for,  and  thus, 
from  this  single  point  of  view,  we  must  recognize  the  inevitableness 
of  war. 

It  may  happen,  of  course,  that  biologically  weak  nations  unite  and 
together  constitute  a  superior  force,  in  order  to  conquer  a  nation  of 
vitality;  frequently  they  may  be  successful  for  a  time.  But  in  the 
long  run — and  in  the  history  of  the  world  we  must  count  by  long 
periods  of  time — the  stronger  vitality  gains  the  upper  hand,  and 
while  the  united  opponents  decline  through  the  abuse  of  their  victory, 

^  Bernhardi,  Vnsere  Zukunft,  pp.  54-56. 


c  INTRODUCTION 

the  strong  nation  acquires  new  forces  after  a  temporary  defeat, 
forces  which  will  be  its  final  victory  even  over  numerical  superiority. 
German  history  is  an  eloquent  illustration  of  this  truth. 

The  biological  law  of  war  is  found  in  the  fact  that  it  is  conducive 
to  the  progressive  development  of  humanity;  for  it  is  clear  that  the 
forces  which  prove  their  superiority  in  war,  namely  and  above  all, 
the  intellectual  and  moral  forces  which  can  thrive  only  among  a 
people  of  great  vitality  are  at  the  same  time  the  forces  which  make 
progressive  development  of  civilization  possible.  For  the  very  reason 
that  they  bear  in  themselves  the  elements  of  progress,  they  lead  to 
the  victory  which  provides  for  the  people  of  strong  vitality  an 
enlarged  and  more  favorable  possibility  for  life  and  an  increased 
influence.  Without  war  we  should  probably  find  that  less  worthy 
and  degenerate  races  would  overcome  the  healthy  and  vigorous  ele- 
ments which  would  lead  to  general  retrogression.  The  creative  power 
of  war  lies  in  the  fact  that  it  causes  selection.  While  war  and  war 
alone  affects  this  selection,  it  becomes  a  biological  necessity,  a  regu- 
lator in  the  life  of  mankind  such  as  cannot  be  dispensed  with,  because 
without  it  there  would  result  an  unhealthy  species,  and  a  develop- 
ment which  would  exclude  every  sort  of  progress  of  the  species,  and 
hence,  every  sort  of  real  civilization.' 

Thus,  if  for  biological  reasons,  we  are  led  to  the  conviction  that 
war  is  a  necessary  element  of  progress,  we  reach  the  same  conclusion 
if  we  look  at  it  from  the  moral  point  of  view:  for  war  is  not  only 
a  biological  necessity,  but  under  circumstances  it  is  a  moral  necessity, 
and  as  such  an  indispensable  means  of  civilization.    .    .    .^ 

It  cannot  be  denied  that  this  ideal  side  of  war  has  its  counter- 
part in  the  blessings  of  peace;  still,  history  teaches  that  an  all  too 
long  period  of  peace,  in  particular  when  it  is  secured  through  the 
abandonment  of  ideal  possessions,  and  thus  dishonors  the  people  in 
its  own  eyes,  cannot  be  a  blessing  for  mankind.  All  narrow-minded 
selfish  impulses  extend  their  range  of  activity ;  idealism  is  destroyed 
by  material  enjoyment  to  which  the  austerity  and  simplicity  of  morals 
succumb.  Money  acquires  an  all-mighty  and  unjustified  power  and 
the  proper  meed  of  respect  is  denied  to  men  of  sturdy  character. 

The  more  deeply  we  study  history,  the  more  clearly  we  realize 
that  peace  is  indeed  the  normal  and  desirable  state,  that,  how- 
ever, as  human  forces  are  constituted  here  on  earth,  the  sweep 
of  a  martial  tempest  is  required  from  time  to  time,  in  order  to 
purify   the   moral   atmosphere.     Political   tensions   may   become   so 

'  Bernhardi,   Vnsere  Zukunft,  pp.  59-60.  2  /ftid.,  p.  63. 


INTRODUCTION  ci 

great,  the  contending  interests  may  become  so  manifold  and  involved 
that  the  Gordian  knot  of  these  difficulties  can  be  cut  with  the  sword 
only,  for  it  alone  is  able  to  bring  the  real  relations  of  power  into  the 
light  and  to  relegate  arrogance  to  its  proper  place. 

Therefore,  when  power,  understood  in  its  higher  sense,  is  put  into 
question — the  power  to  solve  one's  own  problems  of  civilization  and 
to  live  for  one's  own  ideals — and  when  no  accord  can  be  effected 
to  secure  the  highest  possessions  of  a  people,  war  then  becomes  a 
moral  duty!    .     .     . 

In  view  of  the  compelling  logic  of  these  considerations,  it  seems 
most  surprising  that  the  peace  movement  could  acquire  so  great  an 
influence.  This  fact  may  be  explained  in  part  by  this  other  fact  that 
it  has  been  supported  by  very  important  private  interests  which 
operate  through  huge  moneyed  capital.    .     .     . 

A  clear  illustration  of  this  may  be  found  in  the  contrast  between 
the  views  of  the  United  States  of  North  America  and  Germany  with 
special  reference  to  the  question  of  peace,  which  views  control  public 
opinion  in  the  two  countries  respectively. 

In  glorious  battles,  the  United  States  has  conquered  its  inde- 
pendence and  unity ;  it  has,  as  a  result,  acquired  a  heritage  of  glory, 
self-confidence  and  spirit  of  liberty  which  has  given  its  impress  to 
the  nation,  for  a  measurable  space  of  time.  At  present,  the  Union 
has  many  competitors,  but  no  enemies.  Its  relations  with  England 
are  to  some  extent  secured  by  the  community  of  language,  which  is 
often  but  falsely  interpreted  as  a  community  of  race ;  even  the  present 
existing  differences  of  interests  with  Japan — even  if  some  day  war 
were  to  break  out  between  them — cannot  seriously  endanger  the 
vital  interests  of  the  powerful  republic.  For  a  measurable  space  of 
time,  America  need  not  fear  over-population;  in  the  North  and  in 
the  South  of  the  United  States  there  are  wide  expanses  of  territory 
to  which,  in  case  of  need,  the  surplus  population  may  be  diverted 
without  detriment  to  the  American  spirit.  The  wealth  of  the  natural 
resources  of  the  country  which  make  it  independent  of  foreign  coun- 
tries, and  the  spirit  of  enterprise  of  the  people,  on  a  large  scale, 
secure  to  the  country  the  most  favorable  conditions  for  peaceful  com- 
petition. At  the  same  time,  the  struggle  with  nature,  which  has 
not  yet  been  subjected  and  mastered  everywhere,  offers  an  oppor- 
tunity to  steel  the  national  muscles  to  undertake  great  and  difficult 
tasks. 

Under  these  circumstances  it  is  quite  natural  that  the  people  of 
that  country  should,  in  general,  regard  the  peace  movement  with 


cii  INTRODUCTION 

sympathy,  for  peace  can  only  bring  them  advantages,  while  war 
might,  to  all  appearances,  impede  the  development  of  the  country 
and  disturb  the  security  of  the  money  market. 

Look  at  Germany  and  see  how  different  its  position  is!  Since  the 
collapse  of  its  ancient  splendor,  the  German  people  has  had  to  defend 
itself  against  hostile  forces.  Through  difficult  wars  it  has  wrested 
from  the  Slavs  its  infertile  territories  in  the  East,  and  to-day  the 
Slavonic  flood  surges  against  its  frontier  with  increased  hostility. 
In  the  West  and  in  the  South,  the  German  people  had  to  defend 
itself  against  the  Romanic  peoples  and  through  struggles  extending 
over  centuries  it  has  had  to  defend  its  political  independence  without 
having  been  able  to  disarm  the  fanatical  hostility  of  the  French.  The 
most  recent  political  and  economic  rise  of  Germany  has  at  last  made 
England  also  our  bitter  enemy,  for  England  is  afraid  to  lose  her 
mastery  of  the  sea,  and  the  supremacy  of  her  trade.  In  all  parts  of 
the  earth  she  meets  us  in  hostile  fashion  and  opposes  our  colonial 
expansion  which  for  us  is  a  vital  question. 

"When  we  consider  all  these  conditions  it  will  be  readily  under- 
stood why  the  idea  of  universal  peace  has  many  adherents  in  Ger- 
many but  that  it  meets  with  but  little  success  among  the  masses 
of  the  patriotic  and  of  the  educated  people.  History  has  taught  us 
that  a  state  situated  as  ours  is  can  assert  itself  only  with  sword 
in  hand.    ..." 

If  we  regard  every  war  as  a  breach  of  right,  and  if  we  regard 
the  absolute  predominance  of  right  not  only  as  the  highest  expres- 
sion of  civilization,  but  also  as  the  necessary  foundation  of  the  true 
welfare  of  the  state,  we  cannot  but  conclude  that  the  differences  aris- 
ing between  states  should  be  settled  through  arbitration,  by  looking 
upon  these  differences  as  resulting  from  different  conceptions  of 
that  which  is  right. 

This  idea  is  extremely  one-sided,  for  in  the  disagreements  between 
great  states  we  are  concerned  in  no  way,  as  we  have  seen  already, 
with  questions  of  right  only,  but  especially  with  questions  of  power 
which  formal  law  can  never  adjudicate.  Still,  there  is  much  that 
is  good  in  this  idea,  and  this  we  cannot  deny  when  we  are  considering 
a  question  of  right.  For  this  reason,  arbitration  treaties  have  been 
entered  into  between  numerous  states  dealing  with  purely  legal 
questions.  When  it  is  sought,  however,  to  extend  the  scope  of  such 
treaties,  to  include  in  them  the  settlement  of  questions  of  power  and 
thus  to  attribute  to  them  a  validity  extending  to  all  questions — as 

'  Bernhardi,  Unsere  Zukunft,  pp.  65-68. 


INTRODUCTION  ciii 

has  been  most  recently  the  case  with  the  United  States — it  has  ever 
appeared  that  very  definite  restrictions  have  been  laid  upon  the 
importance  of  international  arbitration  proceedings.^ 

A  general  law  of  humanity  is  therefore  as  impossible  as  is  a 
general  understanding  of  right.  Individual  questions  and  others  of 
only  secondary  importance  may  indeed  be  regulated  by  international 
legal  rules;  all  legal  questions  arising  in  the  life  of  all  nations  can- 
not be  sought  in  written  provisions.  It  will  never  be  possible  to 
establish  by  law,  how  far  the  will  to  power  is  or  is  not  justified. 
Even  if  this  were  attempted,  and  even  if  an  all-encompassing  inter- 
national law  were  written,  no  self-respecting  people  would  sacrifice 
to  such  a  law  its  own  conception  of  that  which  is  right  without  sur- 
rendering its  own  ideals,  without  submitting  to  an  injustice  which 
violates  its  own  conception  of  right  and  without  dishonoring 
itself.    .     .     . 

Thus,  the  international  court  of  arbitration  lacks  a  generally 
recognized  legal  and  material  basis  for  its  decisions,  and  I  almost 
believe  that  even  the  second  question  with  regard  to  the  power  which 
is  to  enforce  its  decisions,  must  be  answered  in  a  manner  unfavor- 
able to  the  champions  of  universal  courts  of  arbitration. 

In  America,  in  1908,  the  then  Secretary  of  State,  Elihu  Root, 
expressed  the  opinion  that  the  High  Court  of  International  Justice 
established  by  the  Second  Hague  Conference  could  actually,  in  virtue 
of  tJie  pressure  exercised  hy  public  opinion,  reach  final  and  unobjec- 
tionable decisions ;  and  I  believe  that  the  present  leaders  of  the  Ameri- 
can Peace  Movement  share  this  view.  I  think,  however,  that  the 
conception  of  the  uniformity  of  international  views  and  its  com- 
pelling force  is  greatly  overestimated. 

In  reality,  public  opinion  cannot  be  the  same  throughout  the 
world,  for  the  very  reason  that  the  conceptions  of  right  in  the 
different  nations  differ  one  from  the  other,  and  there  would  be  nothing 
else  to  do  in  order  to  carry  out  the  will  of  the  court  of  arbitration, 
in  case  one  of  the  parties  would  not  submit,  except  to  have  recourse 
to  war  which  it  is  precisely  intended  to  prevent.  In  that  case,  who 
would  wage  the  necessary  war  ?  We  believe  that  on  the  sole  question 
of  solving  this  difficulty  the  idea  of  a  universal  court  of  arbitra- 
tion will  fall.  Only  in  a  universal  state,  as  in  the  ancient  Roman 
empire,  could  one  imagine  an  arbitral  court  for  the  settlement  of 
disputes  between  the  individual  component  elements.  But  it  will 
hardly  be  possible  ever  to  establish  such  a  universal  state.     To  be 

^  Bernhardi,   Unsere  Zukunft,  pp.  69-70. 


civ  INTRODUCTION 

sure,  the  idea  of  a  world  organization  of  the  English  speaking  peoples 
has  been  frequently  considered,  and  in  England  this  aim  is  being 
openly  pursued.  I  believe,  however,  that  the  world  would  not  long 
put  up  with  such  a  yoke,  and  at  all  events,  I  am  quite  certain  that 
we  Germans  would  never  submit  to  it. 

As  long,  therefore,  as  we  live  in  the  system  of  states  as  at  present 
organized,  the  Imperial  German  Chancellor  was  right  when  declaring 
in  a  speech  which  he  delivered  on  March  30,  1911,  that  arbitral 
treaties  between  states  would  have  to  be  limited  to  clearly  defined 
questions  of  right — even  as  I  have  stated  in  this  present  discus- 
sion— and  that,  on  the  other  hand,  a  general  arbitral  treaty  between 
two  states  can  in  no  manner  guarantee  enduring  peace  between  them. 
In  matters  touching  upon  the  vital  interests  of  the  two  states,  it 
would  lose  all  of  its  effect. 

It  should  finally  be  observed,  that  even  the  practical  consequences 
of  an  accepted  arbitral  decision  can  never  take  the  place  of  a  vic- 
tory won  by  arms,  not  even  of  the  state  in  whose  interest  the  decision 
might  be  rendered.    .    .    . 

General  treaties  of  arbitration  could  not  but  be  especially  dan- 
gerous to  an  upward-striving  people  which,  like  the  German  people, 
has  not  yet  reached  the  height  of  its  political  and  national  develop- 
ment, and  which  is  compelled  to  enlarge  its  power  in  order  to  do 
justice  to  its  cultural  tasks.  .   .  .^ 

War  will  always  remain  a  forcible  means  of  policy  which, 
under  any  circumstances,  imposes  great  sacrifices  upon  the  one 
resorting  to  it,  and  appears,  therefore,  only  justifiable  when  the 
question  at  issue  concerns  the  highest  vital  interests  of  really  civi- 
lized peoples.  It  is,  therefore,  undoubtedly  the  duty  of  mankind  to 
confine  the  political  use  of  war  to  such  cases,  and  as  far  as  possible 
to  eliminate  all  such  causes  of  war  as  have  nothing  whatever  to  do 
with  the  great  interests  of  mankind.  Whoever  resolves  upon  war 
takes  a  great  responsibility  upon  himself;  we  must,  therefore,  con- 
sider more  in  detail  the  question  as  to  the  practical  political  aims 
which  may  justify  the  resort  to  arms. 

It  is  exceedingly  difficult  to  answer  this  question  in  a  generally 
acceptable  way.  It  seems  to  me,  however,  that  it  may  be  to  some 
extent  satisfactorily  answered  if  we  consider  the  nature  of  the  task 
of  the  state.    .    .    . 

If  it  is  a  fact,  as  we  have  attempted  to  show  in  our  discussion, 
that  the  task  of  the  state  consists  in  promoting  the  highest  intellec- 

'  Bernhardi,   Vnsere  Zukunft,  pp.  71-74. 


INTRODUCTION  cv 

tual  and  moral  development  of  its  citizens  and  to  contribute  to  the 
education  of  mankind,  then  the  personal  actions  of  the  state  must 
of  necessity  be  subject  to  moral  laws,  and  war  must  be  justified  on 
moral  grounds.  But,  of  course,  we  must  not  allow  ourselves  to  be 
misled  in  this  matter,  that  is  to  say,  we  must  not  apply  the  concep- 
tion of  individual  morality  to  that  of  the  state.  The  morality  of  the 
state  must  rather  grow  out  of  its  own  special  nature ;  the  moral  judg- 
ment of  the  state  must  be  sought  in  the  nature  and  in  the  object 
of  the  existence  of  the  state  itself,  even  as  the  morality  of  the  indi- 
vidual has  its  roots  in  its  personal  existence  and  in  its  social  duties. 

But  the  essence  of  the  state  is  power  because  when  in  virtue  of 
an  increasing  political  power  it  is  able,  in  its  competition  with  the 
rest  of  the  peoples,  to  do  justice  to  its  highest  cultural  tasks  and  to 
offer  to  its  citizens  ever  wider  and  more  advantageous  possibilities 
of  existence  and  of  development.    .    .     . 

To  sacrifice  its  own  interests  to  those  of  a  foreign  state,  no  matter 
under  what  pretext,  is,  therefore,  always  an  immoral  act,  because  it 
is  contrary  to  self-assertion  which  is  the  foremost  task  of  the  state. 
Weakness  is,  however,  the  most  reprehensible  and  most  contemptible 
political  sin.  It  is,  as  Treitschke  has  expressed  it,  the  sin  against 
the  Holy  Ghost  of  policy.  Equally  immoral  it  is  if  policy  is  not 
directed  to  increase  the  power  of  the  state  which  is  needed  as  the 
necessary  basis  for  the  further  cultural  development  of  the  people.^ 

Therefore,  we  see  clearly,  that  for  us  Germans  it  is  not  only 
practically  expedient  but  morally  necessary  to  carry  on  an  honest 
but  at  the  same  time  strong,  determined  policy  of  power,  a  policy 
which  looks  not  only  to  the  welfare  of  the  present,  but  above  all  to 
the  organization  of  our  national  future;  that  arbitral  courts  in 
important  political  questions  only  impede  our  progressive  develop- 
ment; finally  that  we  have  the  right  and  the  duty  to  take  up  arms 
when  irreconcilable  differences  arise  in  our  international  relations 
and  when  we  realize  that  the  neighboring  states  intend  to  prevent  and 
to  repress  our  political  development  which  is  historically  and  biologi- 
cally necessary.^ 

We  must  make  the  best  of  things  as  they  are.  The  tension  between 
the  two  states  (England  and  Germany)  will  continue  until  the  dis- 
pute has  been  settled  either  by  resort  to  arms  or  until  one  of  the 
two  states  voluntarily  yields  its  point  of  view. 

As  a  yielding  to  the  demands  and  claims  of  England  would  be 

'  Bernhardi,  Unsere  Zukunft,  pp.  74-75. 
2  Ibid.,  pp.  77-78. 


cvi  INTRODUCTION 

for  us  the  same  as  a  complete  sacrifice  of  our  political  and  national 
future,  we  must  therefore  resolve  to  view  that  other  possibility  and 
see  if  England  will  either  extend  her  hand  to  us  to  effect  an  under- 
standing, or  if  she  will  compel  us  to  defend  our  best  national  claims 
with  arms  in  hand. 

Under  these  circumstances  there  still  remains  the  possibility  of 
a  limited  understanding  with  England,  an  understanding  which 
would  not  render  a  final  battle  impossible,  but  which  might  put  it  off 
for  a  little  while,  if  in  doing  so,  we  thought  it  might  be  of  advan- 
tage to  us.  It  is  worth  the  trouble  to  study  this  possibility  more 
in  detail,  because  many  of  our  people  count  upon  such  an  under- 
standing. I  believe  that  in  this  expectation  we  shall  be  likewise 
miserably  disappointed.' 

We  need  not,  therefore,  give  up  the  attempt  to  bring  about  such 
an  understanding  upon  an  acceptable  basis,  but  we  must  draw  a  sharp 
line  beyond  which  we  shall  make  no  concessions,  and  at  the  same 
time  we  must  prepare  with  the  utmost  energy  for  the  more  probable 
result:  that  the  sought  for  understanding  will  not  be  realized. 

Such  a  result,  however,  means  war,  not  only  war  with  England, 
but  with  the  United  Powers  of  the  Triple  Entente.  In  view  of  the 
present  world  state  of  affairs  it  is  our  imperative  duty  to  create  the 
most  favorable  conditions  possible  for  that  struggle.- 

To  neglect  the  defensive  power  and  thus  undermine  the  defensive 
force  of  a  people  is  the  greatest  crime  that  can  be  committed.  The 
school  of  arms  is  the  true  iron-springs  for  character,  and  the  defen- 
sive power  based  upon  a  healthy  defensive  force  ojffers  at  all  times 
to  the  state  the  only  security  and  the  only  guarantee  of  a  favorable 
political,  social,  and  cultural  development,  which,  as  we  well  know, 
are  all  interdependent.  The  moral,  the  intellectual,  and  physical 
defensive  power  is  at  the  same  time  the  truest  measure  of  civiliza- 
tion; it  finds  its  living  expression  in  actual  defensive  power. 
When  the  latter  is  neglected,  or  when  it  loses  respect  among  the 
people,  the  organism  of  the  nation  sickens  and  gives  rise  to  ominous 
agitations ;  on  the  other  hand,  a  superior  and  properly  used  defensive 
power  always  guarantees  political  success,  which  in  turn  results  in 
a  moral  economic  and  cultural  progress. 

The  most  recent  history  clearly  shows  this  to  be  the  truth.' 

In  view  of  this  recognition,  it  is  the  imperative  duty  of  every 
upwards-striving  state  to   inquire  ever   and   anon   whether   or   not 

'  Bernhardi,  Unsere  Zukunft,  pp.  100-101. 

2  Ibid.,  p.  102.  ^Ibid.,  p.  103. 


INTRODUCTION  cvii 

sufficient  attention  has  been  given  to  the  improvement  of  the  defen- 
sive force,  whether  or  not  the  military  organization  responds  to  the 
demands  of  the  political  state  of  affairs,  and  whether  or  not  the 
defensive  force  is  sufficient  to  put  the  totality  of  the  people  on  a 
military  basis  in  such  manner  that  the  people  will  come  to  regard 
the  benefits  of  military  training  as  a  high  attribute.  This  self- 
examination  becomes  particularly  necessary  in  times  when  great 
world-historic  decisions  are  felt  and  recognized  by  everyone  as 
impending.' 

Today  the  German  Empire  finds  itself  in  this  position.  It  must 
be  clear  even  to  the  most  short-sighted — as  has  already  been  shown 
in  another  part  of  this  discussion — that  in  the  present  conditions 
of  world  affairs  Germany  is  confronted  by  the  question  as  to  whether 
she  will  seek  and  secure  equal  rights  and  privileges  with  the  great 
world  powers,  England,  Russia,  and  the  United  States,  or  whether 
in  the  matter  of  the  European  balance  of  power  she  will  permit  her- 
self to  be  shoved  to  the  level  of  a  second-rate  state  and  at  the  same 
time  lose  gradually  her  economic  position  as  a  great  power. 

We  must  not  allow  ourselves  to  be  deceived  by  the  constantly 
reemphasized  love  of  peace,  or  by  the  official  agreement  of  the  various 
cabinets!  These  diplomatic  measures  are,  after  all,  only  a  cloak 
under  which  every  state  hides  its  own  interests,  and  this  cloak  will 
be  thrown  off  as  soon  as  the  favorable  opportunity  affords  of  the 
realization  of  the  individual  aims  of  the  respective  states.  Power  is 
the  only  regulator  of  policy,  and  every  state  would  commit  a  crime 
against  itself  if  at  the  favorable  moment  it  did  not  make  use  of  its 
power.  We  must  take  account  of  this  and  of  everything  else  if  in  the 
last  analysis  we  are  not  to  be  deceived  and  pay  with  our  blood  for 
our  illusion.^ 

When  we  come  to  study  the  political  history  of  the  states,  we  soon 
reach  the  conclusion  that  the  greatest  successes  have  everywhere 
been  obtained  where  an  active  policy  with  sharply  defined  aims  and 
purposes  has  uninterruptedly  endeavored  to  organize  and  utilize  the 
state  of  world's  affairs  for  its  own  advantage,  and  in  all  of  its  enter- 
prises has  relied  only  upon  the  actually  existing  means  of  power  and 
recognized  no  other  law  than  the  law  of  its  own  advantage.  On  the 
other  hand,  when  success  has  been  expected  from  an  inactive  and 
waiting  policy  with  the  uncertain  prospect  that  possibly  some  advan- 
tage might  be  snatched,  or  when  the  conduct  of  the  state  was  even 

^  Bernhardi,  Unsere  Zukunft,  p.  105. 
2  Ibid.,  p.  111. 


cviii  INTRODUCTION 

influenced  by  the  sentimental  peace  dreams  of  its  statesmen,  the 
national  policy  was,  as  a  rule,  without  beneficial  results  if  it  did  not 
actually  lead  to  ruin. 

That  this  is  so,  and  that  it  will  ever  remain  so  is  predicated  by 
the  nature  of  things.^ 

Foreign  policy  is  a  struggle  between  opposing  interests,  and  who- 
ever does  not  retain  the  initiative  in  this  struggle,  will  soon  lose  his 
favorable  position  and  find  himself  surrounded  by  the  pack  of  his 
enemies.    .    .    . 

I  have  already  shown  on  the  whole  the  aims  for  which  we  must 
strive.  We  are  no  longer  to  consider  the  means  by  which  these  aims 
may  be  attained.  Let  us,  therefore,  once  more  summarize  the  leading 
ideas  which  should  guide  our  foreign  policy: 

Security  of  our  position  as  a  power  on  the  European  Continent 
can  be  attained  only,  provided  we  succeed  in  breaking  the  Triple 
Entente,  and  in  reducing  France,  which  cannot,  once  and  for  all, 
be  pursuaded  to  cooperate  with  us,  to  that  position  which  she  deserves. 

Our  political  power  can  he  enlarged  by  gathering  in  a  central 
European  union  all  the  middle  European  states  which  still  occupy 
an  independent  position,  a  union  which  must  not  be  concluded  in 
a  one-sided  manner  only  for  the  purpose  of  defense,  but  a  union  for 
defense  and  offense  which  must  be  able  actually  to  look  after  the 
manifold  interests  of  its  members. 

This  object  can,  in  all  probability,  be  realized  only  after  a  vic- 
torious war  which  shall  finally  strengthen  the  confidence  in  German 
power  and  make  it  impossible  for  its  opponent  to  thwart  our  aims 
by  force. 

Enlargement  of  our  colonial  possessions  and  acquisition  of  colonies 
fit  for  settlements. 

Within  this  field  much  can  perhaps  be  accomplished  by  peaceful 
means.  But  we  must  not  conceal  from  ourselves  the  fact  that  Eng- 
land will  undoubtedly  oppose  all  colonial  acquisition  that  might 
actually  increase  our  power,  and  prevent  us  by  all  means,  to  acquire 
coaling  stations  and  supporting  points  for  our  fleet  abroad.  Colonies 
fit  for  settlement  cannot  be  secured  without  military  action  against 
other  states. 

Whithersoever  we  turn  our  eyes  we  find  that  the  road  to  the 
peaceful  realization  of  our  aims  is  barred  and  that  we  are  confronted 
by  the  alternative  of  either  giving  up  our  plans  or  of  preparing  our- 
selves for  the  necessity  of  obtaining  our  objects  by  the  sword.     An 

^  Bernhardi,  Unsere  Zukunft,  p.  132. 


INTRODUCTION  cix 

understanding  with  England  by  reason  of  which  she  would  have  to 
recognize  the  justice  and  necessity  of  our  efforts  and  obligate  herself 
to  support  us  in  our  political  efforts,  would  indeed  essentially  diminish 
the  necessity  of  military  complications.  But,  as  we  have  already 
shown,  we  cannot  reckon  with  such  an  understanding.  England's 
hostility  toward  us  is  rather  founded  upon  our  entire  political  sys- 
tem and  we  will  merely  harm  our  most  essential  interests  if  we  chase 
after  the  phantom  of  such  an  understanding  or  even  if  we  make 
sacrifices  in  order  to  bring  this  mirage  within  our  reach. 

Even  as  Bismarck  himself  clearly  and  finally  recognized  that  a 
further  successful  development  of  Prussia  and  of  Germany  was 
possible  only  after  the  rivalry  between  Austria  and  Prussia  had  been 
finally  settled,  even  so  must  every  unprejudiced  man  have  now  been 
convinced  that  Germany's  further  development  as  a  world  power  is 
possible  only  when  the  rivalry  with  England  shall  have  been  settled 
finally ;  and  even  as  a  cordial  alliance  between  Germany  and  Austria 
had  become  possible  only  after  Austria's  defeat  in  the  war  of  1899, 
so  we  shall  come  to  the  settlement  with  England  which  is  desirable 
from  every  point  of  view,  only  after  we  shall  some  day  have  crossed 
swords  with  her.  As  long  as  our  foreign  policy  does  not  make  this 
its  leading  thought,  it  will,  in  my  judgment,  be  forced  to  it  without 
accomplishing  much  success. 

It  is  evident  that  we  need  not  acknowledge  publicly  this  as  our 
view  of  world  conditions,  nor  openly  submit  our  real  political  aims 
to  our  opponents;  we  may  indeed  earnestly  endeavor  to  realize  our 
aims  by  peaceful  means  and  to  win  our  opponents  over  to  our  view- 
point without  resort  to  war.  We  must  not,  however,  permit  of  our 
taking  a  single  step  which  might  be  in  conflict  with  our  ultimate 
aims,  and  we  must  indefatigably  keep  before  our  eyes  our  real  task, 
that  is  to  say  we  must  prepare  politically  and  militarily  for  the 
apparently  unavoidable  struggle  and  to  make  sure  of  our  ultimate 
success.    .    .    .' 

A  farsighted  policy  is  in  such  a  case  a  command  of  self-preserva- 
tion and  political  wisdom.  Great  danger  lurks  in  a  waiting  policy. 
The  truth  of  this  is  clearly  shown  by  the  history  of  our  past.    .    .    . 

.  .  .  Let  us  be  on  our  guard  not  to  wait  again  until  our  allies 
are  defeated  and  we  are  placed  before  the  choice  of  either  fighting 
alone  or  to  enter  war  under  the  most  unfavorable  conditions.  Not 
only  the  army  and  the  fleet,  but  our  foreign  policy  also  must  be  ready 
for  immediate  action. 

'  Bernhardi,   Unsere  Zukunft,  pp.  133-135. 


ex  INTRODUCTION 

Our  foreign  policy  must  be  restlessly  active  and  bring  about  the 
most  favorable  conditions  for  the  approaching  struggle.  Although, 
in  order  to  attain  special  aims,  our  foreign  policy  may  for  the  time 
being  cooperate  with  the  other  great  powers,  still  it  must  always 
bear  in  mind  that  the  agreement  with  the  powers  of  the  Triple 
Entente  can,  in  its  nature,  be  only  provisional  and  confined  to 
definite  objects;  that  the  continuance  of  the  agreement  is  guaran- 
teed by  nothing  except  paper  which  bears  signatures;  therefore,  our 
foreign  policy  must  be  resolved  to  interfere  by  force  of  arms,  when- 
ever our  interests  are  seriously  endangered:  for  the  responsibility 
of  bringing  about  a  necessary  war  under  favorable  conditions  is  much 
smaller  than  the  responsibility  of  making  an  unfortunate  war 
inevitable  for  the  sake  of  momentary  advantages  or  from  lack  of 
decision.   .    .    .' 

The  foregoing  pages  were  written  before  a  decision  had  been 
reached  in  Turkey.    .    .    . 

For  a  long  time,  the  Turkish  Empire  has  been  in  the  process  of 
disintegration;  still  it  was  absolutely  in  the  interests  of  the  Triple 
Alliance  to  delay  the  absolute  expulsion  of  the  Turks  from  Europe 
until  the  great  European  War,  which  will  decide  the  fate  of  the  middle 
European  states,  shall  have  been  fought. 

The  Triple  Alliance  will  now  have  to  wage  this  war  under  far 
less  favorable  conditions. 

Before  Turkey's  defeat  by  the  River  Ergene,  the  Triple  Alliance, 
in  case  of  a  European  War,  could  count  upon  cooperation,  on  its 
side,  by  Turkey  and  Roumania.  .  .  .  Today  all  this  has  changed 
and  a  state  of  affairs  has  been  created  which  bears  the  greatest 
dangers  for  Germany  and  her  allies. 

If  Austria  recognizes  the  enlargement  of  the  Balkan  states  in 
the  hope  of  securing  in  them  an  authoritative  influence,  she  will 
clash  with  Russia,  which  is  pursuing  the  same  object.  .  .  .  Serbia 
at  least  will  ever  be  hostile  to  Austria  as  long  as  several  million 
Serbs  are  under  Austrian  rule  who  strive  for  a  reunion  with  their 
compatriots;  and,  furthermore,  as  long  as  the  Serbian  state  strives 
to  secure  an  outlet  on  the  Adriatic  Sea,  and  she  will  never  cease 
to  work  to  that  end.    .    .    . 

Roumania  also  will  in  all  probability  cease  to  be  a  possible  future 
auxiliary  power  of  the  Triple  Alliance.  For  the  present  she  still 
sides,  it  is  true,  with  the  middle-European  group  of  states,  in  order 
to  secure  through  the  latter  an  enlarged  territory  to  the  detriment 

'  Bernhardi,  Vnsere  Zukunft,  pp.  141-142. 


INTRODUCTION  cxi 

of  Bulgaria.  It  seems,  however,  more  than  doubtful  whether  she 
will  be  able  to  continue  in  this  attitude.  Wedged  in  between  the 
mighty  Russia  and  a  considerably  enlarged  Bulgaria,  Roumania  will 
no  longer  be  able  to  continue  an  independent  policy,  but  in  all  proba- 
bility will  either  completely  fall  under  the  influence  of  Russia  or 
join  the  Balkan  union.  In  either  case  she  can  hope  for  nothing  more 
from  the  Triple  Alliance,  and  forced  by  necessity,  she  will  more  or 
less  side  with  our  enemies.    ..." 

Because  of  all  these  conditions  the  danger  of  a  general  war  has 
been  increased.  The  strained  relations  alone  which  exist  between 
Austria  and  Serbia  may  possibly  lead  to  such  a  war.  But,  even  if 
that  struggle  may  for  the  moment  be  settled,  the  Austro-Serbian 
contentions  will  continue,  and  it  can  scarcely  be  thought  that  the 
powers  of  the  Triple  Entente  will  not  exploit  the  advantageous  posi- 
tion in  which  they  now  find  themselves,  supported  and  urged  thereto 
by  public  opinion,  and  attempt  to  force  their  orders  upon  Germany. 
It  would  be  but  the  logical  and  natural  consequence  of  their  com- 
bined policy.  There  is  still  hope,  of  course,  that  it  might  be  possible 
to  use  the  opposing  interests  of  Russia  and  England,  arising  from  the 
Balkan  question,  in  such  a  manner  that  cooperation  against  Germany 
on  the  part  of  these  two  powers  might  be  prevented.  Such  a  solu- 
tion is,  however,  not  probable.  For  this  reason  a  far-sighted  and 
cautious  policy  must  take  into  account  the  possibility  of  a  military 
conflict.  Up  to  the  present  time  France  and  Russia  have  not  con- 
sidered the  present  moment  quite  favorable  for  waging  war.  The 
unexpected  Balkan  events  have  totally  altered  their  position  also. 
Under  these  circumstances,  it  behooves  those  who  conduct  our  foreign 
policy  to  watch  out. 

All  the  weak-spirited  adherents  of  a  ''small  policy,"  who  ever  and 
anon  attempt  to  depress  the  justified  claims  of  our  people,  who  warn 
us  to  be  moderate  in  our  aims,  who  do  not  wish  to  know  anything  about 
a  real  world  policy,  and  wish  to  see  Germany  persist  in  the  narrow 
sphere  of  action  of  a  Continental  power,  these  adherents  will,  under 
the  momentary  circumstances,  certainly  assert  themselves  in  order 
to  prove  that  Germany  has  no  sort  of  vital  interests  to  look  after 
in  the  Balkans  and  to  warn  against  every  attempt  to  any  energetic 
action.  Do  not  desire  anything!  Do  not  strive  for  anything!  And 
above  all,  do  not  risk  anything!  These  represent  the  watchword  of 
those  Philistine  politicians  who  wish  for  peace  above  all  things,  even 
if  the  greatness  and  future  of  our  Fatherland  must  be  sacrificed 

*  Bernhardi,  Vnsere  Zukunft,  pp.  147-150. 


cxii  INTRODUCTION 

for  it.  They  will  certainly  not  fail  to  point  emphatically  to  the 
dangers  of  a  war  against  superior  opponents  and  demand  that  the 
Government  should  through  "moderate"  conduct  avoid  the  war, 
no  matter  what  the  circumstances,  instead  of  preparing  for  it  by 
energetic  action.    .    .     . 

Our  enemies  would  even  deprive  us  of  our  position  of  power 
which  we  have  won  through  two  victorious  wars,  and  the  world-wide 
trade,  which  increases  our  national  wealth  from  year  to  year.  Even 
as  they  would  not  that  Frederick  the  Great  should  have  "Silesia" 
nor  the  "hundred  millions  in  his  treasury,"  even  so  would  they  now 
pull  us  down  and  in  its  germ  stifle  our  world-importance.    .    .    . 

Our  claim  to  world  importance  may  certainly  lead  to  a  war  similar 
to  the  Seven  Years'  War;  but  we  shall  be  as  victorious  in  that  war 
as  Prussia's  heroic  king  was  in  the  Seven  Years'  War.  That  is  my 
absolute  and  joyous  confidence.    .    .    , 

Our  future  lies  in  our  own  hands. 

The  weak-spirited  will  discuss  the  financial  question  and  com- 
plain that  we  cannot  afford  to  spend  the  money  necessary  to  wage 
such  a  war.  I  believe  that  in  case  of  need  we  can  provide  the  neces- 
sary money  through  a  domestic  loan.    .    .    . 

It  seems  absolutely  criminal,  in  the  tremendously  wealthy  Ger- 
many, to  talk  of  financial  difficulties  when  the  future  of  the  state  and 
of  the  nation  is  at  stake. 

Germany  does  not  lack  money  for  the  purpose  of  asserting  its 
position ;  but  we  must  have  the  courage  to  will  great  things  and  the 
active  force  to  attain  great  things. 

Every  one  of  us  must  do  a  man's  work;  all  true  Germans  must, 
as  one,  and  willing  to  sacrifice,  gather  around  the  Emperor,  and  be 
ready  at  all  times,  with  treasure  and  blood,  to  serve  the  honor,  the 
greatness,  and  the  future  of  the  German  people:  through  battle  to 
victory ! ' 


(n)    TJieobald  von  BetJimann-Hollweg  (1856-) 

We  are  now  in  a  state  of  necessity,  and  necessity  knows  no  law. 
Our  troops  have  occupied  Luxembourg  and  perhaps  are  already  on 
Belgian  soil.  Gentlemen,  that  is  contrary  to  the  dictates  of  inter- 
national law.  It  is  true  that  the  French  government  has  declared 
at  Brussels  that  France  is  willing  to  respect  the  neutrality  of  Bel- 

'  Von  Bernhardi,  Unsere  Zukunft,  pp.  151-154. 


INTRODUCTION  cxiii 

gium,  as  long  as  her  opponent  respects  it.  "We  knew,  however,  that 
France  stood  ready  for  invasion.  France  could  wait,  but  we  could 
not  wait.  A  French  movement  upon  our  flank  upon  the  Lower  Rhine 
might  have  been  disastrous.  So  we  were  compelled  to  override  the 
just  protest  of  the  Luxembourg  and  Belgian  governments.  The  wrong 
— I  speak  openly — that  we  are  committing  we  will  endeavor  to  make 
good  as  soon  as  our  military  goal  has  been  reached.  Anybody  who 
is  threatened  as  we  are  threatened,  and  is  fighting  for  his  highest 
possessions,  can  only  have  one  thought — how  he  is  to  hack  his  way 
through.    .    .    .' 

I  found  the  Chancellor  very  agitated.  His  Excellency  at  once 
began  an  harangue  which  lasted  for  about  twenty  minutes.  He  said 
that  the  step  taken  by  His  Majesty's  government  was  terrible  to  a 
degree;  just  for  a  word — "neutrality,"  a  word  which  in  war  time 
had  so  often  been  disregarded — just  for  a  scrap  of  paper  Great  Britain 
was  going  to  make  war  on  a  kindred  nation  who  desired  nothing 
better  than  to  be  friends  with  her.    .    .    .  ^ 

*  Speech  of  the  Imperial  German  Chancellor  in  the  Reichstag,  August  4,  1914. 
(London  Times,  August  11,  1914). 

At  the  session  of  the  Reichstag  on  August  27,  1915,  the  Imperial  German 
Chancellor  is  reported  to  have  said: 

"  On  the  part  of  Germany  no  attempt  has  ever  been  made  to  justify  the 
German  invasion  of  Belgium  through  subsequent  allegations  of  guilty  con- 
duct on  the  part  of  the  Belgian  Government."  {Norddeutsche  Allgemei/ne 
Zeitung,  August  28,  1915,  p.  1.) 

2  The  British  Blue  Book  (No.  1),  d.  No.  160;  DiplomatiG  Documents  Relating 
to  the  Outbreak  of  the  European  War,  vol.  2,  p.  1007. 

I  was  received  this  morning  [August  4]  at  9  o'clock  by  the  Minister  for 
Foreign  Affairs.  He  said  to  me :  "  We  have  been  obliged  by  absolute  necessity 
to  address  to  your  Government  the  request  of  which  you  are  aware.  .  .  .  It  is 
only  with  the  utmost  anguish  {la  mort  dans  I'dme)  that  the  Emperor  and  the 
Government  have  seen  themselves  obliged  to  come  to  this  decision.  For  me  it  is 
the  most  painful  one  that  I  have  ever  had  to  make.  .  .  .  Germany  has  nothing 
with  which  to  reproach  Belgium,  whose  attitude  has  always  been  correct."    .    .     . 

On  August  5  ...  I  was  received  by  the  Under  Secretary  of  State.  Herr 
Zimmermann  expressed  to  me,  with  much  emotion,  his  profound  regrets  for  the 
cause  of  my  departure.  .  .  .  He  sought  no  pretext  to  excuse  the  violation 
of  our  neutrality.  He  did  not  invoke  the  supposed  French  plan  ...  of  pass- 
ing through  Belgium  in  order  to  attack  Germany  on  the  lower  Rhine.  .  .  . 
[To  all  remonstrances  he]  simply  replied  that  the  Department  for  Foreign 
Affairs  was  powerless.  Since  the  order  for  mobilization  had  been  issued  .  .  . 
all  power  now  belonged  to  the  military  authorities.  It  was  they  who  had  con- 
sidered the  invasion  of  Belgium  to  be  an  indispensable  operation  of  war.  .  .  . 
(Reports  of  Baron  Beyens,  Belgian  Minister  at  Berlin,  to  the  Belgian  Foreign 
Minister,  Belgian  Qrey  Book  (No.  2),  docs.  25,  51,  52;  Diplomatic  Documents 
Relating  to  the  Outbreak  of  the  European  War,  part  1,  pp.  448,  474-477.) 


cxiv  INTRODUCTION 

(o)    William  II,   German  Emperor  and  King  of  Prussia    (1859-) 

Here  it  was  that  the  Great  Elector,  by  his  own  right,  created  him- 
self the  sovereign  Duke  in  Prussia;  here  his  son  set  the  king's  crown 
upon  his  head ;  and  the  sovereign  house  of  Brandenburg  thus  became 
one  of  the  European  powers.  .  .  .  And  here  my  grandfather,  again, 
by  his  own  right,  set  the  Prussian  crown  upon  his  head,  once  more 
distinctly  emphasizing  the  fact  that  it  was  accorded  him  by  the  will 
of  God  alone  and  not  by  parliament  or  by  any  assemblage  of  the 
people  or  by  popular  vote,  and  that  he  thus  looked  upon  himself  as 
the  chosen  instrument  of  Heaven  and  as  such  performed  his  duties 
as  regent  and  sovereign.    .    .    . 

Looking  upon  myself  as  the  instrument  of  the  Lord,  without  re- 
gard for  daily  opinions  and  intentions,  I  go  my  way.    ..." 

1  Speech  at  Konigsberg,  August  25,  1010;  Gauss,  The  Oerman  Emperor  as 
shown  in  his  Public  Utterances    (New  York,   1915),  pp.  280-284. 

On  other  occasions  the  Emperor  William  has  expressed  the  theory  of  divine 
right  in  pithy  and  telling  phrases,  such  as  "  You  Germans  have  only  one  will, 
and  that  is  My  will ;  there  is  only  one  law,  and  that  is  My  law."  "  Sic  volo, 
aic  mbeo."  "  Only  one  master  in  this  country.  That  is  I,  and  who  opposes  Me 
I  shall  crush  to  pieces."  (See  Barker's  Foundations  of  Germany,  London,  1916, 
p.  120.) 

What  William  II  meant  by  his  statement  that  he  would  crush  anyone  stand- 
ing in  his  way  is  evidenced  by  the  treatment  of  Belgium. 

In  1914  he  said  in  his  letter  of  August  14,  to  the  President  of  the  United 
States,  that  it  was  necessary  for  strategic  reasons  to  invade  Belgium.     (Post.) 

In  1910,  as  the  guest  of  the  King  and  Queen  of  Belgium  he  said,  in  an  address 
delivered  on  October  27th  at  the  Royal  Palace  in  Brussels: 

"  It  is  with  friendliest  sympathy  that  I  and  all  Germany  follow  the  astound- 
ing results  which  have  accrued  to  the  untiring  energy  of  the  Belgian  people  in 
all  departments  of  trade  and  industry,  the  crowning  display  of  which  we  have 
seen  in  the  brilliantly  successful  World  Exposition  of  this  year.  Belgian  com- 
merce embraces  the  whole  circle  of  the  earth,  and  it  is  in  the  peaceful  work  of 
culture  that  Germans  and  Belgians  everywhere  meet.  Their  cultivation  of  the 
more  spiritual  arts  fills  us  with  similar  wonder  when  we  behold  to  what  a  con- 
spicuous place  the  poets  and  artists  of  Belgium  have  attained.  May  the  trustful 
and  friendly  feelings,  to  which  in  recent  times  the  relations  of  our  governments 
bore  such  pleasing  evidence,  be  ever  more  closely  preserved !  From  your  Majesty's 
reign  may  happiness  and  blessing  stream  forth  upon  your  house  and  upon  your 
people!  It  is  with  this  wish,  which  comes  from  the  very  depths  of  my  heart, 
that  I  propose  long  life  to  your  Majesties,  the  King  and  Queen  of  the  Belgians !  " 
(Gauss,  The  Oerman  Emperor  as  shown  in  his  Public  Utterances,  pp.  291-292.) 


4.   DECLARATIONS  OF  A  STATE  OF  WAR.* 


July 

28 

Austria 

vs. 

Serbia 

August 

1 

Germany 

VB. 

Russia 

August 

3 

Germany 

vs. 

France 

August 

3 

France 

vs. 

Germany 

August 

4 

(Germany 

vs. 

Belgium 

August 

4 

Great  Britain 

vs. 

Germany 

August 

6 

Austria 

vs. 

Russia 

August 

6 

Serbia 

vs. 

Germany 

August 

8 

Montenegro 

vs. 

Austria 

August 

9 

Montenegro 

vs. 

Germany 

August 

9 

Austria 

vs. 

Montenegro 

August 

13 

Great  Britain 

vs. 

Austria 

August 

13 

France 

vs. 

Austria 

August 

23 

Japan 

vs. 

Germany 

August 

27 

Austria 

vs. 

Japan  * 

August 

28 

Austria 

vs. 

Be  gium 

November 

3 

Russia 

vs. 

Turkey 

November 

5 

France 

vs. 

Turkey 

November 

5 

Great  Britain 

vs. 

Turkey 

November 

23 

Turkey 

vs. 

Allies 

November 

23 

Portugal 

vs. 

Germany  » 

December 

2 

Serbia 

vs. 

Turkey 

1915 

May 

19 

Portugal 

vs. 

Germany  * 

May 

24 

Italy 

vs. 

Austria 

May 

24 

San  Marino 

vs. 

Austria 

August 

21 

Italy 

vs. 

Turkey 

October 

14 

Bulgaria 

vs. 

Serbia 

October 

15 

Great   Britain 

vs. 

Bulgaria 

October 

16 

Serbia 

vs. 

Bulgaria 

October 

16 

France 

vs. 

Bulgaria 

October 

19 

Russia 

vs. 

Bulgaria 

October 

19 

Italy 

vs. 

Bulgaria 

1916 

March 

9 

Germany 

vs. 

Portugal 

August 

27 

Roumania 

vs. 

Austria  • 

August 

28 

Italy 

vs. 

Germany 

August 

29 

Turkey 

vs. 

Roumania 

September 

14 

Germany 

vs. 

Roumania 

November 

28 

Greece  ( Provisional  Government ) 

vs. 

Bulgaria 

November 

28 

Greece  ( Provisional  Government ) 

vs. 

Germany 

'  The  following  list  is,  with  two  exceptions,  identical  with  that  published  on 
December  11,  1917,  in  the  Official  Bulletin  issued  by  the  Committee  on  Public  In- 
formation. In  the  first  place,  the  declaration  of  Serbia  against  Germany  appears 
to  have  been  made  August  6,  instead  of  August  9,  1914,  as  stated  by  the  Bulletin. 
In  the  second  place,  that  of  Japan  against  Germany  appears  to  have  been  made 
August  23,  1914,  instead  of  August  23,  1917,  as  stated  by  the  Bulletin. 

"  On  August  27,  1914,  the  Austro-Hungarian  Ambassador  to  the  United  States 
notified  the  Department  of  State  that  Austria-Hungary  had  severed  diplomatic 
relations  with  Japan  and  that  the  Austrian  cruiser  Queen  Elizabeth  had  been 
ordered  to  join  the  German  fleet  in  the  Far  East.  On  this  information,  the  De- 
partment of  State  issued  a  neutrality  proclamation,  dated  August  27,  1914. 
Neither  Government  has  issued  a  declaration  of  war. 

'  Resolution  passed  authorizing  military  intervention  as  ally  of  England. 
Official  Bulletin,  Dec.  11,  1917. 

*  Military  aid  granted.    Official  Bulletin,  Dec.  11,  1917. 

°  Allies  of  Austria  also  consider  it  a  declaration.  Official  Bulletin,  Dec.  11,. 
1917. 


4.    DECLARATIONS  OF  A  STATE  OF  WAR   (Cont.). 


1917 
April 
April 
April 
July 
July 
July 
July 
August 
August 
August 
October 
December 


6  United    States  vs. 

7  Cuba  vs. 
7  Panama  vs. 
2  Greece  (Government  of  Alexander)  vs. 
2  Greece  (Government  of  Alexander)  vs. 

22  Siam  vs. 

22  Siam  vs. 

4  Liberia  vs. 

14  China  vs. 

14  China  vs. 

26  Brazil  vs. 

7  United  States  vs. 


Germany 

Germany 

Germany 

Bulgaria 

Germany 

Austria 

Germany 

Germany 

Austria 

Germany 

Germany 

Austria 


A  SURVEY  OF    INTERNATIONAL   RELATIONS 

BETWEEN  THE  UNITED  STATES 

AND  GERMANY 


CHAPTER   I 
GENESIS    OF    THE   WAR   OF   1914 

"While  the  purpose  of  the  present  volume  is  not  to  dwell  upon  the 
causes  of  the  European  War,  but  to  state  and  consider  the  reasons 
which  led  the  United  States,  on  April  6,  1917,  to  declare  the  existence 
of  a  state  of  war  with  the  Imperial  German  Government,  it  is  never- 
theless desirable  to  chronicle,  by  way  of  introduction,  the  events  imme- 
diately preceding  the  declaration  of  war  by  Germany  against  Russia 
on  August  1,  1914,  and  to  sketch  briefly  the  course  of  events  since 
Prussia  started,  out  to  weld  the  German  states  into  an  empire  under 
its  leadership,  and  since  this  empire,  an  enlarged  Prussia,^  started 
out  to  dominate  the  world,  of  which  the  United  States  is  a  part. 

For  generations  it  had  been  the  desire  and  the  longing  of  the 
German-speaking  peoples,  split  up  into  hundreds  of  insignificant 
states  and  petty  principalities,  to  be  united  into  a  large  and  powerful 
nation  which  would  administer  to  their  comforts  at  home  and  make 
them  respected  abroad.  The  Holy  Roman  Empire,  which  it  has  been 
wittily  said  was  neither  Holy  nor  Roman,  was  dissolved  in  1806 
as  a  consequence  of  the  Napoleonic  Wars,  and  upon  the  reorganiza- 
tion of  Europe  in  1814-15  at  the  Congress  of  Vienna  the  German 

^  When,  one  day,  Bismarck  observed  to  William  I  that  the  Empire  would 
not  give  its  consent  in  the  matter  of  a  certain  political  decision,  the  latter, 
in  a  moment  of  indignation,  replied:  "What,  the  Empire!  the  Empire,  as 
you  know,  is  merely  an  extended  Prussia."  This  expresses  the  thing  trooper 
fashion,  but  it  is  true.      (Treitschke,  Politik,  vol.  1,  p.  40.) 

Prussia  was  not  swallowed  up  in  Germany.  This  expression,  which  is  met 
with  even  in  our  time,  denotes  the  exact  opposite  of  the  palpable  fact:  Prussia 
extended  its  own  institutions  over  the  rest  of  Germany.      (Ibid.,  vol.  2,  p.  339.) 

While  the  Federal  States,  as  far  as  possible,  must  seek  to  prevent  inequality 
between  the  members,  yet,  the  German  Empire  rests  upon  this  very  inequality. 
That  is  to  say,  there  is  within  the  Empire  one  leading  state  which  has  feder- 
atively  annexed  and  subordinated  the  other  states  to  itself.  What  would 
become  of  Germany,  if  the  Prussian  State  should  cease  to  be?  The  German 
Empire,  in  such  a  case,  could  not  continue  to  exist  at  all.  From  this  results 
a  truth  unpleasant  to  most  people,  yet  not  at  all  offensive  to  non-Prussian 
people,  to  the  effect,  that  within  this  German  Empire,  Prussia  alone  of  the 
former  German  States  has  preserved  its  sovereignty.  Prussia  alone  has 
remained  a  sovereign  state.  Prussia  has  not  lost  the  right  of  arms;  nor 
need  Prussia  permit  other  states  to  curtail  its  sovereign  rights.  The  German 
Emperor  is  also  the  King  of  Prussia;  he  is  the  military  leader  of  the  nation, 
and  we  are  indulging  in  unavailing  hairsplitting  when  we  imagine  cases  in 
which  the  German  Emperor  and  the  King  of  Prussia  might  come  into  conflict 
with  one  another.      (Ibid.,  pp.  343-344.) 

1 


2     A  SURVEY  OF  INTERNATIONAL  RELATIONS 

States  were  loosely  confederated  under  the  leadership  of  Austria. 
The  presence  in  the  Confederation  of  Austria,  composed  in  large  part 
of  foreign  peoples,  was  disagreeable  to  the  advocates  of  a  union  of 
the  German  States  as  such,  and  especially  so  to  Prussia  because  it 
aspired  to  a  leadership  which  was  inconsistent  with  the  presidency 
of  the  Confederation  held  by  Austria. 

In  1848  the  overthrow  of  Louis  Philippe  led  to  revolutionary 
outbreaks  in  Germany  and  elsewhere,  and  representatives  of  the 
German  people  meeting  in  Frankfort  sought  to  create  an  empire, 
from  which  Austria  was  to  be  excluded,  and  offered  the  crown  to 
Frederick  William  IV,  then  King  of  Prussia.  The  offer  was  rejected. 
The  reason  given  for  the  refusal  was  that  Frederick  William  might 
have  accepted  the  crown  had  it  been  freely  offered  to  him  by  the 
German  princes,  but  that  he  would  never  stoop  "to  pick  up  a  crown 
out  of  the  gutter." 

In  1858,  Frederick  William,  whose  conduct  had  been  erratic  for 
years,  was  recognized  as  insane  and  his  brother,  Prince  William, 
became  Prince  Regent.  Upon  the  death  of  Frederick  William  in  1861 
without  children,  Prince  William  became  William  I  of  Prussia,  and 
later  Gierman  Emperor.  A  year  later  Bismarck  became  Prime  Min- 
ister, and  in  less  than  a  decade  thereafter  the  German  Confederation 
was  dissolved,  Austria  was  excluded  from  the  circle  of  German  States, 
and  the  States,  united  in  theory  into  a  German  empire,  were  in  fact 
merged  into  an  enlarged  Prussia. 

It  had  long  been  the  ambition  of  Prussia  to  assume  the  leader- 
ship of  the  German  States,  and  from  the  time  of  Frederick  the  Great 
the  possibility  of  such  leadership  was  evident.  What  Frederick 
began  Bismarck  finished,  and  the  policy  of  Prussia,  controlled  and 
carried  to  a  successful  conclusion  by  Bismarck,  was  to  put  an  end  to 
the  rivalry  of  Austria  by  crushing  and  excluding  it  from  the  circle 
of  German  States,  in  order  that  Prussia  might  be,  in  fact  and  in 
theory,  the  leader  of  the  new  Germany. 

To  accomplish  this  purpose  two  wars  of  the  first  water  were 
"necessary,"  one  with  Austria,  the  other  with  France;  and  the  states- 
manship of  Bismarck  was  equal  to  each  occasion. 

Denmark  was  to  be  the  first  victim  on  the  altar  of  German 
nationalism. 

For  present  purposes  it  is  sufficient  to  say  that  the  Duchies  of 
Schleswig-Holstein,  although  separate,  were  closely  united  under  a 
common  Duke ;  that  the  northern  part  of  Schleswig  was  wholly  Danish, 
the  southern  slightly  so ;  that  Holstein  was  wholly  German  and  that, 


BETWEEN  THE  UNITED  STATES  AND  GERMANY       3 

while  the  King  of  Denmark  was  Duke  of  both,  Holstein  formed  a  part 
of  the  German  Confederation,  just  as  Hanover  under  an  English  king 
formed  a  part  of  the  Holy  Roman  Empire  and  of  its  successor,  the 
German  Confederation.  The  Danes,  very  unwisely  as  it  happened, 
attempted  to  stamp  out  the  German  element  in  Schleswig,  and,  con- 
trary to  the  Treaty  of  London  of  1852,^  by  which  the  Powers  had 
settled  the  affairs  of  the  Duchies,  practically  annexed  Schleswig, 
leaving  Holstein  a  part  of  the  Confederation.  As  this  body  refused 
to  intervene  in  the  affairs  of  Schleswig,  because  the  Duchy  was 
beyond  its  sphere  of  influence,  Bismarck  turned  to  Austria  to  main- 
tain the  sanctity  of  a  treaty  to  which  both  were  parties.  Austria  con- 
sented, and  an  ultimatum  was,  on  January  16,  1864,  dispatched  to 
Denmark,  ordering  a  withdrawal  within  the  space  of  two  days  of  the 
Constitution  practically  annexing  Schleswig.  In  vain  the  Danish 
Minister  informed  the  self-constituted  mandatories  of  the  Powers  that 
the  Danish  Parliament  was  not  then  in  session  and  that  it  was  impos- 
sible to  comply  with  their  demands  within  the  time  set.  Upon  the 
expiration  of  the  limit  of  two  days,  or  forty-eight  hours,  Prussia  and 
Austria  (which  seem  to  have  a  fondness  for  this  time-limit  in  their 
relations  with  small  states)  fell  upon  the  gallant  but  misguided  little 
country  and  dispossessed  it  of  the  Duchies  of  Schleswig-Holstein,  one 
of  which  was  placed  under  the  control  of  Austria,  the  other  under 
the  control  of  Prussia,  in  order  that  a  quarrel  might  be  picked  and 
a  pretext  be  at  hand  for  a  war  against  Austria.  This  disposition  of 
the  Duchies  was  in  the  teeth  of  the  Treaty  of  London.^ 

A  distinguished  English  historian,  the  late  Mr.  C.  A.  Fyffe,  says^ 
in  his  History  of  Modern  Europe,  that: 

From  this  time  the  history  of  Germany  is  the  history  of  the 
profound  and  audacious  statecraft  and  of  the  overmastering  will 

1  To  the  Treaty  of  London  of  May  8,  1852,  Great  Britain,  Austria,  France, 
Prussia,  Russia,  Sweden,  and  Norway,  on  the  one  hand,  and  Denmark,  on  the 
other,  were  parties.  By  the  first  article  the  succession  to  the  Duchies,  in  default 
of  the  royal  male  line  of  Denmark,  devolved  upon  Prince  Christian  of  Schleswig- 
Holstein-Sonderbourg-Gliicksbourg.  By  the  second  article  the  Powers  were  to 
consider  the  question  of  subsequent  descent  should  Prince  Christian  have  no 
heirs  by  his  marriage  with  his  then  wife.  By  the  third  article  the  relations 
of  the  Duchies  of  Holstein  and  Lauenburg  to  Denmark,  on  the  one  hand,  and 
to  the  Confederation,  on  the  other,  were  not  to  be  aifected  by  the  present  treaty. 
Por  the  text  of  this  treaty  see  British  and  Foreign  State  Papers,  vol.  41,  p.   13. 

~  By  the  Treaty  of  Vienna  of  October  30,  1864,  between  Austria  and  Prussia, 
on  the  one  hand,  and  Denmark,  on  the  other,  it  was  provided  in  the  third  article 
that  "His  Majesty  the  King  of  Denmark  renounces  all  his  rights  over  the 
Duchies  of  Schleswig,  Holstein,  and  Lauenburg  in  favor  of  their  Majesties  the 
King  of  Prussia  and  the  Emperor  of  Austria,  engaging  to  recognize  the  disposi- 
tions which  their  said  Majesties  shall  make  with  reference  to  those  Duchies." 
(Ibid.,  vol.  54,  p.  522.) 


4  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  Bismarck ;  the  Nation,  except  through  its  valour  on  the  battle- 
field, ceases  to  influence  the  shaping  of  its  own  fortunes.  What 
the  German  people  desired  in  1864  was  that  Schleswig-Holstein 
should  be  attached,  under  a  ruler  of  its  own,  to  the  German 
Federation  as  it  then  existed;  what  Bismarck  intended  was  that 
Schleswig-Holstein,  itself  incorporated  more  or  less  directly  with 
Prussia,  should  be  made  the  means  of  the  destruction  of  the 
existing  Federal  system  and  of  the  expulsion  of  Austria  from 
Germany.' 

In  later  passages  of  his  history,  Mr.  Fyffe  says : 

That  Prussia  should  have  united  its  forces  with  Austria  in 
order  to  win  for  the  Schleswig-Holsteiners  the  power  of  govern- 
ing themselves  as  they  pleased,  must  have  seemed  to  Bismarck 
a  supposition  in  the  highest  degree  preposterous.  He  had  taken 
up  the  cause  of  the  Duchies  not  in  the  interest  of  the  inhabitants 
but  in  the  interest  of  Germany;  and  by  Germany  he  understood 
Germany  centered  at  Berlin  and  ruled  by  the  House  of  Hohen- 
zollern.  .  .  .  That  Austria  would  not  without  compensation 
permit  the  Duchies  thus  to  fall  directly  or  indirectly  under 
Prussian  sway  was,  of  course,  well  known  to  Bismarck;  but  so 
far  was  this  from  causing  him  any  hesitation  in  his  policy,  that 
from  the  first  he  had  discerned  in  the  Schleswig-Holstein  ques- 
tion a  favorable  pretext  for  the  war  which  was  to  drive  Austria 
out  of  Germany    .    .    .^ 

An  agreement  was  patched  up  at  Gastein  by  which,  pending 
an  ultimate  settlement,  the  government  of  the  two  provinces  was 
divided  between  their  masters,  Austria  taking  the  administration 
of  Holstein,  Prussia  that  of  Schleswig,  while  the  little  district 
of  Lauenburg  on  the  south  was  made  over  to  King  William  in 
full  sovereignty.*  An  actual  conflict  between  the  representatives 
of  the  two  rival  Governments  at  their  joint  headquarters  in 
Schleswig-Holstein  was  thus  averted;  peace  was  made  possible 
at  least  for  some  months  longer;  and  the  interval  was  granted 

*C.  A.  Fyffe,  A  History  of  Modern  Europe  (1889),  vol.  3,  pp.  346-347. 

2IUd.,  p.  356. 

'  A  convention  was  concluded  between  Austria  and  Prussia  at  Gastein  on 
August  14,  1865.     Article  1  is  as  follows: 

The  Exercise  of  the  Rights  acquired  in  common  by  the  High  Contracting 
Parties,  in  virtue  of  Article  III  of  the  Vienna  Treaty  of  Peace  of  30th 
October,  1864,  shall,  without  prejudice  to  the  continuance  of  those  rights 
of  both  Powers  to  the  whole  of  both  Duchies,  pass  to  His  Majesty  the 
Emperor  of  Austria  as  regards  the  Duchy  of  Holstein,  and  to  His  Majesty 
the  King  of  Prussia  as  regards  the  Duchy  of  Schleswig. 

Article  9  reads: 

His  Majesty  the  Emperor  of  Austria  cedes  to  His  Majesty  the  King  of 
Prussia  the  Rights  acquired  in  the  aforementioned  Vienna  Treaty  of  Peace 
with  respect  to  the  Duchy  of  Lauenburg;  .  .  .  (British  and  Foreign  State 
Papers,  vol.  56,  p.  1026.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY        5 

to  Bismarck  whicli  was  still  required  for  the  education  of  his 
Sovereign  in  the  policy  of  blood  and  iron,  and  for  the  comple- 
tion of  his  own  arrangements  with  the  enemies  of  Austria  outside 
Germany.' 

The  quarrel  came  as  Bismarck  had  planned  it;  his  understanding 
with  Russia  in  the  Polish  insurrection  of  1863  made  that  Power  his 
debtor;  the  ingratitude  of  Austria  to  Russia  for  the  aid  that  saved 
Hungary  in  1850,  manifested  by  its  unsympathetic  attitude  in  the 
Crimean  War,  not  only  astonished  the  world  but  deprived  Austria 
of  help  from  Russia  in  the  impending  war  with  Prussia.  Vague  assur- 
ances of  "compensation"  to  Louis  Napoleon  kept  France  neutral. 
Austria,  therefore,  stood  alone;  the  war  with  Austria,  after  proper 
preparation  of  the  ground,  broke  out  in  1866,  and  the  crowning  vic- 
tory of  Sadowa  accomplished  the  Prussian  purpose. 

Immediately  after  the  peace  with  Austria,  the  North  German 
Confederation  was  formed,  composed  of  the  northern  States  and  of 
Prussia,  swelled  by  the  annexation  of  Hanover,  the  Duchy  of  Nassau, 
a  part  of  Hesse,  and  the  free  city  of  Frankfort.  An  understand- 
ing was  reached  with  the  southern  States  by  which  they  were  to 
join  Prussia  in  the  event  of  a  war  with  France — for  a  war  with 
France  lay,  as  Bismarck  said,  in  the  logic  of  events,  and  just  as  the 
war  with  Austria  resulted  in  the  acquisition  of  the  northern  States, 
so  the  war  with  France  was  to  result  in  the  acquisition  of  the  southern 
States.  That  is  to  say,  the  war  with  France  was  not  to  be  the  initia- 
tion as  in  the  case  of  Austria,  but  was  to  be  the  completion  of  German 
national  unity  under  the  leadership  of  the  King  of  Prussia,  and,  that 
there  might  be  no  doubt  about  the  leadership,  the  States  were  not 
to  be  formed  into  a  confederation  but  into  an  empire,  whose  crown 
was  to  be  held  by  the  King  of  Prussia  as  such.  ^ 

'  Fyffe's  History  of  Modern  Europe,  vol.  3,  pp.  358-359. 

2  The  material  portions  of  the  treaty  of  peace  between  Austria  and  Prussia 
concluded  at  Prague  on  August  23,  1866,  are: 

Art.  2.  For  the  purpose  of  carrying  out  Article  VI  of  the  Preliminaries 
of  Peace  concluded  at  Nikolsburg  on  the  26th  July,  1866,  and  as  His 
Majesty  the  Emperor  of  the  French  officially  declared  through  his  accredited 
Ambassador  to  His  Majesty  the  King  of  Prussia,  on  the  29th  July,  1866, 
"  qu'en  ce  qui  concerne  le  Gouvernement  de  I'Empereur,  la  Venetie  est 
acquise  a  I'ltalie  pour  lui  etre  remise  a  la  Paix  " — ^His  Majesty  the  Emperor 
of  Austria  also  accedes  on  his  part  to  that  Declaration  and  gives  his  consent 
to  the  Union  of  the  Lombardo-Venetian  Kingdom  with  the  Kingdom  of 
Italy,  without  any  other  burdensome  condition  than  the  liquidation  of  those 
Debts  which,  being  charged  on  the  Territories  ceded,  are  to  be  recognized  in 
accordance  with  the  precedent  of  the  Treaty  of  Zurich. 

Art.  4.  His  Majesty  the  Emperor  of  Austria  acknowledges  the  disso- 
lution of  the  Germanic  Confederation  as  hitherto  constituted,  and  gives 
his  consent  to  a  new  organization  of  Germany  without  the  participation 


6  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

But  Prussian  policy  required  that  Austria  should  be  a  henchman, 
not  an  enemy,  and,  in  pursuance  of  this  policy,  Bismarck  did  not 
saddle  Austria  with  an  impossible  indemnity  or  impose  humiliating 
conditions  upon  it.  Austria  was  destined  to  become  an  ally,  a  friend, 
a  satellite.  In  speaking  of  the  policy  to  be  pursued  toward  Austria, 
Bismarck  says,  in  his  autobiography: 

With  a  view  to  our  future  relations  with  Austria,  I  was 
very  careful  to  avoid,  as  far  as  possible,  cause  for  grievous 
memories,  if  this  could  be  brought  about  without  prejudice  to 
our  German  policy.  ...  A  political  reason  lay  back  of  this 
consideration ;  I  was  more  inclined  to  avoid  than  to  bring  about 
a  triumphal  entry  into  Vienna  in  the  Napoleonic  style.  In  situ- 
ations such  as  ours  was  at  that  time,  it  is  a  political  precept, 
after  a  victory  not  to  inquire  how  much  one  can  squeeze  out 
of  one's  opponent,  but  aim  only  to  secure  what  is  politically 
necessary.' 

The  reason  for  this  seeming  mercy  on  the  part  of  Bismarck  was  due 
to  his  belief,  as  he  wrote  many  years  later  in  his  autobiography, 
*  *  that  in  the  logic  of  history, ' '  which  he  himself  was  to  make,  ' '  a  war 
with  France  would  succeed  that  with  Austria. "  ^  Or  as  he  expressed 
it  at  the  time  in  an  interview  with  our  own  Carl  Schurz  in  1868: 

Sound  statesmanship  required  that  the  Austrian  Empire, 
the  existence  of  which  was  necessary  for  Europe,  should  not  be 

of  the  Imperial  Austrian  State.  His  Majesty  likewise  promises  to  recognize 
the  more  restricted  Federal  relations  which  His  Majesty  the  King  of  Prussia 
will  establish  to  the  north  of  the  line  of  the  Main;  and  he  declares  his 
concurrence  in  the  formation  of  an  Association  of  the  German  States  situ- 
ated to  the  south  of  that  line,  whose  national  connexion  with  the  North 
German  Confederation  is  reserved  for  further  arrangement  between  the 
parties,  and  which  will  have  an  independent  international  existence. 

Art.  5.  His  Majesty  the  Emperor  of  Austria  transfers  to  His  Majesty 
the  King  of  Prussia  all  the  rights  which  he  acquired  by  the  Vienna  Treaty 
of  Peace  of  30th  October,  1864,  over  the  Duchies  of  Holstein  and  Schleswig, 
with  the  condition  that  the  populations  of  the  Northern  Districts  of 
Schleswig  shall  be  ceded  to  Denmark  if,  by  a  free  vote,  they  express  a 
wish  to  be  united  to  Denmark. 

Art.  6.    ...    On  the  other  hand,  His  Majesty  the  Emperor  of  Austria 
promises   to   recognize   the   new   arrangements   that   will    be   made   by    His 
Majesty  the  King  of  Prussia  in  North  Germany,  including  the  Territorial 
alterations.     (British  and  Foreign  State  Papers,  vol.  56,  p.  1050.) 
It  is  of  interest  to  note  in  this  connection  that  the  "  free  vote  "  to  determine 
the  ultimate  destiny  of  Schleswig  never  took  place,  as  Prussia  insisted  that  it 
was  a  stipulation  of  a  treaty  between   itself  and  Austria,  giving  no  rights  to 
third  parties,  and  by  the  treaty  between  the  two  countries  of  October  11,  1878, 
the  provision  of  this  treaty  regarding  Schleswig  was  abrogated  by  Prussia,  that 
is  to  say  the  German  Empire,  and  Austria-Hungary.      (Ibid.,  vol.  69,  p.  773.) 
^  Bismarck,   Gedanken  und  Erinnerungen,  p.  391. 
2  lUd. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY       7 

reduced  to  a  mere  wreck;  that  it  should  be  made  a  friend,  and, 
as  a  friend,  not  too  powerless;  and  what  Prussia  had  gone  to 
war  for,  was  the  leadership  in  Germany,  and  that  this  leader- 
ship in  Germany  would  not  have  been  fortified,  but  rather  weak- 
ened, by  the  acquisition  from  Austria  of  populations  which  would 
not  have  fitted  into  the  Prussian  scheme.  Besides,  the  Chan- 
cellor thought  that,  the  success  of  the  Prussians  having  been 
so  decisive,  it  was  wise  to  avoid  further  sacrifices  and  risks.' 

The  wisdom  of  this  policy  was  seen  in  1870  when  Austria,  then 
converted  into  the  dual  monarchy  of  Austria-Hungary,  did  not  join 
France  in  the  Franco-Prussian  War  as  Napoleon  III  had  anticipated. 

The  next  victim  was  to  be  France. 

Just  as  Bismarck  had  planned  a  war  against  Austria  and  had 
made  his  arrangements  in  advance,  so  he  planned  a  war  against  France 
and  made  his  arrangements  in  advance,  saying:  "I  regarded  it  as 
certain  that  war  with  France  would  .  .  .  necessarily  have  to  be 
waged  on  the  road  to  our  further  national  development ; ' '  and  ' '  I  had 
no  doubt  that  a  Franco-German  war  would  have  to  be  waged  before 
the  complete  organization  of  Germany  could  be  realized. ' '  ^ 

Bismarck's  purpose  in  the  war  with  Austria  was,  as  has  been 
said,  to  exclude  it  from  the  circle  of  German  States  and  to  put 
Prussia  in  its  place,  or  as  Bismarck  himself  put  it: 

Our  task  was  the  establishment  or  preparation  for  the  estab- 
lishment of  a  German  national  unity  under  the  leadership  of 
the  King  of  Prussia." 

In  an  interview  in  1868  with  Carl  Schurz,  the  distinguished 
American  statesman,  Bismarck  adverted  to  the  war  with  Austria, 
then  two  years  behind  him,  and  to  the  war  with  France,  two  years 
off,  saying: 

My  calculation  is  that  the  crisis  will  come  in  about 
two  years.  We  have  to  be  ready,  of  course,  and  we  are.  We 
shall  win,  and  the  result  will  be  just  the  contrary  of  what 
Napoleon  aims  at — the  total  unification  of  Germany  outside  of 
Austria,  and  probably  Napoleon's  downfall.* 

On  this  Mr.  Schurz  comments: 

This  was  said  in  January,  1868.  The  war  between  France 
and  Prussia  and  her  allies  broke  out  in  July,  1870,  and  the 

^Reminiscences  of  Carl  Schurz  (New  York;  McClure,  1907-1908,  3  vols.)> 
vol.  3,  p.   271. 

2  Bismarck,   GedanJcen  und  Erinnerungen,  p.  404. 

'Ibid.,  p.   399. 

*  Reminiscenses  of  Carl  Schurz,  vol.  3,  p.  274. 


8     A  SURVEY  OF  INTERNATIONAL  RELATIONS 

foundation  of  the  German  Empire  and  the  downfall  of  Napoleon 
were  the  results.  No  prediction  was  ever  more  shrewdly  made 
and  more  accurately  and  amply  fulfilled.' 

It  was  indeed  a  marvelous  prediction,  but  one  which  Bismarck 
could  safely  make,  as  to  the  time  which  he  himself  was  to  choose 
and  as  to  the  results  which  he  had  already  predetermined.  He  was, 
as  he  said,  ready.  The  pretext,  as  distinct  from  the  cause,  of  the 
war,  was  found  in  the  offer  of  the  crown  of  Spain  to  a  prince  of 
the  Hohenzollern-Sigmaringen  line.  The  Spanish  people  had  rid 
themselves  of  Queen  Isabella  and  were  looking  around  for  a  king. 
They  hit  upon  Prince  Leopold  of  this  line,  who  was  willing,  although 
apparently  not  overanxious,  to  accept  the  crown,  but  Napoleon  III, 
already  tottering  and  fearful,  was  unwilling  to  be  wedged  in,  as  it 
were,  between  two  Prussian  rulers.  As  the  result  of  Napoleon's  pro- 
test, King  William  of  Prussia,  as  the  head  of  the  Hohenzollern  house, 
approved  the  refusal  of  the  crown  by  his  kinsman  in  order  to  avoid 

'  It  is  interesting  to  an  American  reader  to  learn  that  Carl  Schurz,  who 
found  fortune  and  fame  in  the  New  World,  refused  to  desert  it  for  place  and 
position  in  the  Fatherland,  as  appears  from  the  following  quotation  from  his 
interview  with  Bismarck: 

Throughout  our  conversation  Bismarck  repeatedly  expressed  his  pleasure 
at  the  friendly  relations  existing  between  him  and  the   German  Liberals, 
some  of  whom  had  been  prominent  in  the  revolutionary  troubles  of   1848. 
He  mentioned  several  of  my  old  friends,  Bucher,  Kapp,  and  others,  who, 
having  returned  to  Germany,  felt  themselves  quite  at  home  under  the  new 
conditions,  and  had  found  the  way  open  to  public  positions  and  activities 
of    distinction    and    influence,    in    harmony   with    their    principles.      As    he 
repeated   this,    or    something   like    it,    in    a    manner    apt   to    command    my 
attention,  I  might  have  taken  it  as  a  suggestion  inviting  me  to  do  likewise. 
But  I  thought  it  best  not  to  say  anything  in  response.     I  simply  dropped 
a    casual    remark    in    some    proper    connection    that    my    activities    in    the 
United    States   were    highly   congenial    to    me    and   that,    moreover,    I    was 
attached  to  the  American  Republic  by  a  sense  of  gratitude  for  the  distinc- 
tions which   it  had   so  generously   bestowed  upon  me.      {Reminiscences  of 
Carl  Schurz,  vol.  3,  p.  279.) 
It  is  of  more  than  passing  interest  to   quote   a   further  passage   from   the 
interview  dealing  with  the  question  which  must  be  uppermost  in  the  minds  of 
our  people  today.     In  reply  to  Bismarck's  inquiry  "  whether  the  singular  stories 
he  had  been  told  about  the  state  of  discipline  existing  in  our  armies  in  the 
Civil  War  were  true,"  the  distinguished  American  statesman,  who  had  been  a 
Major  General  and  corps  commander  in  the  Civil  War,  thus  answered: 

I  had  to  admit  that  that  state  of  discipline  would  in  many  respects  have 
shocked  a  thoroughbred  Prussian  officer,  and  I  told  him  some  anecdotes  of 
outbreaks  of  the  spirit  of  equality  which  the  American  is  apt  to  carry  into 
all  relations  of  life,  and  of  the  occasional  familiarities  between  the  soldier 
and  the  officer  which  would  spring  from  that  spirit.  Such  anecdotes  amused 
him  immensely,  but  I  suppose  his  Prussian  pride  inwardly  revolted  when 
I  expressed  the  opinion  that  in  spite  of  all  this  the  American  soldier  would 
not  only  fight  well,  but  would,  in  a  prolonged  conflict  with  any  European 
army,  although  at  first  put  at  a  disadvantage  by  more  thorough  drill  and 
discipline,  after  some  experience  prove  superior  to  all  of  them.    {Ibid.,  p.  278^) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY       9 

what  Bismarck  wanted — war.^  The  victory  lay  with  France,  but  the 
false  step  taken  by  Napoleon  and  his  advisers,  of  requiring  from  the 
Prussian  King  a  promise  that  he  would  not  allow  the  candidacy  to  be 
renewed  at  some  subsequent  time,  gave  Bismarck  the  chance  to  snatch 
victory  from  defeat,  which  he  did  by  the  simple  but  not  wholly 
reputable  device  of  "concentrating"  or  "abbreviating"  a  telegram. 
The  announcement  that  the  Prince  of  Hohenzollern  had  renounced 
his  candidacy  in  order  to  avoid  a  war  with  France  was  so  dis- 
appointing to  Bismarck  that  his  first  idea  was  to  retire  from  the 
service.^  For  the  purpose  of  communicating  this  intention,  he  invited 
Moltke,  Chief  of  the  Prussian  General  Staff,  and  Roon,  the  Minister  of 
War,  to  dine.  During  the  course  of  the  dinner  Bismarck  was  handed 
the  telegram  sent  by  the  King's  secretary  from  Ems  informing  him  of 
the  demand  of  the  French  Ambassador  upon  the  King  of  Prussia, 
that  he  should  bind  himself  for  all  future  time  not  to  consent  to  the 
renewal  of  the  candidacy  of  the  Hohenzollerns  for  the  crown  of  Spain, 
of  the  refusal  of  the  King  to  undertake  such  an  engagement,  and  of 
his  decision  not  to  receive  the  French  Ambassador  again  but  to  com- 
municate with  him  through  an  aide-de-camp.  The  telegram  left  it  to 
Bismarck  whether  the  French  demand  and  its  rejection  should  be 
communicated  to  the  Prussian  Ambassadors  and  to  the  press.  After 
a  consideration  of  the  advantages  of  war  and  the  expression  of  the 
belief  that  it  could  only  be  avoided  at  the  cost  of  Prussia's  honor, 
Bismarck  states  in  his  autobiography  that  he  made  use  of  the  royal 
authorization  to  publish  the  contents  of  the  telegram,  and,  in  the 
presence  of  his  guests,  reduced  it  by  striking  out  words,  but  with- 
out additions  or  alterations.'  The  difference  between  the  abbrevi- 
ated and  the  original  text  is  thus  stated  by  Bismarck  himself: 

'In  his  Gedanken  und  Erinnerungen  (pp.  428,  et  seq.) ,  Bismarck  disclaims 
the  authorship  of  the  plan  to  place  a  Hohenzollern  upon  the  throne  of  Spain, 
although  that  plan  would  have  played  into  his  hands  and,  irrespective  of  its 
authorship,  he  used  it  to  bring  about  a  war  with  France  and  to  merge  the 
German  States  into  an  enlarged  Prussia.  '*  From  the  political  point  of  view 
I  was  rather  indifferent  to  the  entire  question.  Prince  Anton,  more  than 
myself,  was  inclined  to  carry  it  peacefully  to  the  desired  goal.  The  memoirs 
of  His  Majesty,  the  King  of  Roumania,  are  not  very  exact  as  regards  certain 
details  of  the  ministerial  cooperation  in  the  matter."  (Ibid.,  p.  430.)  His 
Majesty,  the  King  of  Romnania,  a  Hohenzollern  himself  and  brother  of  the 
candidate,  Avas  of  a  different  opinion,  ascribing  to  Bismarck  the  candidacy  of  a 
Hohenzollern  Prince  for  the  vacant  throne  of  Spain.  (Aus  dem  Lehen  Konig 
Karls  von  Rumdnien,  Aufzeichnungen  eines  Augenzeugen  [Stuttgart,  1897], 
vol.  2,  pp.  62,  72,  93.)      (See  post,  pp.  323-324.) 

2  Ibid.,  pp.  434-435. 

®  The  Ems  telegram  is  thus  given  by  Bismarck  himself  in  his  autobiography: 

His  Majesty  writes  me:    "Count  Benedetti  joined  me  on  the  promenade 
and  requested  me  in  a  last  endeavor,  and  in  a  most  urgent  manner,  that 


10  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  difference  in  the  effect  of  the  shortened  text  of  the  Ems 
telegram  as  compared  with  that  produced  by  the  original  was 
not  the  result  of  stronger  words  but  the  result  of  the  form,  which 
made  it  appear  that  this  announcement  was  decisive,  while  the 
text  as  drafted  by  Abeken  [the  King's  secretary]  would  only 
have  appeared  as  a  fragment  of  still  pending  negotiations  which 
were  to  be  continued  at  Berlin.' 

Bismarck's  purpose  in  publishing  the  telegram  in  "abbreviated'* 
form  is  also  stated  in  his  autobiography  as  follows: 

After  I  had  read  the  condensed  text  to  my  two  guests,  Moltke 
remarked:  "In  this  form,  it  has  a  different  ring;  it  sounded 
before  like  a  parley;  now  it  sounds  like  a  flourish  in  answer  to 
a  challenge."  I  went  into  details:  "If  in  execution  of  His 
Majesty's  order  I  forthwith  communicate  this  text,  which  con- 
tains no  alterations  in  and  no  addition  to  the  telegram,  not 
only  to  the  newspapers,  but  as  well  by  telegraph,  to  all  our 
embassies,  it  will  be  known  in  Paris  before  midnight,  and  there, 
not  only  on  account  of  its  contents,  but  also  because  of  the 
manner  of  its  distribution,  it  will  have  the  effect  of  a  red  rag 
upon  a  Gallic  buU.  We  must  fight  if  we  do  not  want  to  appear 
in  the  role  of  the  vanquished  without  a  battle.  Success  depends 
essentially  upon  the  impressions  which  the  origin  of  the  war 
produces  upon  us  and  others;  it  is  important  that  we  should 
be  the  party  attacked,  and  the  Gallic  conceit  and  excitableness 

I  should  authorize  him  to  telegraph  at  once  that  I  obligated  myself  for 
all  future  time  never  again  to  give  my  consent,  in  case  the  HohenzoUerns 
should  renew  their  candidature.  At  last,  I  refused  somewhat  emphatically, 
by  telling  him  that  I  had  neither  the  right  nor  power  to  enter  d  tout  jamais 
upon  engagements  of  this  kind.  I  replied,  of  course,  that  I  had  received 
no  news  as  yet,  and  as  he  received  earlier  information  about  Paris  and 
Madrid  than  myself,  he  could  readily  see  that,  once  more,  my  Government 
had  no  hand  in  the  matter."  His  Majesty  has  since  received  a  communi- 
cation from  the  Prince.  Having  told  Count  Benedetti  that  he  was  expecting 
news  from  the  Prince,  His  Majesty,  with  reference  to  the  above  request 
and  upon  the  proposition  of  Count  Eulenburg  and  myself,  had  decided  not 
to  receive  Count  Benedetti  again,  but  only  to  have  him  informed  through 
an  Adjutant:  that  His  Majesty  had  received  confirmatory  news  from  the 
Prince,  news  that  Benedetti  had  already  received  from  Paris,  and  had 
nothing  further  to  communicate  to  the  Ambassador."  (Bismarck,  Oedanken 
und  Erinnerungen,   p.   437.) 

The  telegram  as  reduced  by  Bismarck  "  by  striking  out  words,  but  without 
adding  or  altering  "  is  as  follows : 

After  the  news  of  the  renunciation  of  the  hereditary  Prince  of  Hohen- 
zollern  had  been  officially  communicated  to  the  Imperial  French  Govern- 
ment by  the  Royal  Spanish  Government,  the  French  Ambassador  at  Ems 
further  demanded  of  His  Majesty  the  King  to  be  authorized  to  telegraph 
to  Paris  that  His  Majesty  the  King  obligated  himself  for  all  future  time, 
never  again  to  give  his  consent  in  case  the  HohenzoUerns  should  renew 
their  candidature.  His  Majesty,  the  King,  thereupon  declined  again  to 
receive  the  French  Ambassa,dor  and  had  him  informed  through  the  Adjutant 
on  duty  that  His  Majesty  had  nothing  further  to  communicate  to  the 
Ambassador.      {Ibid.,   pp.   439-440.) 

'Ibid.,  p.  440. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      11 

will  make  us  the  party  attacked  if  through  a  European-wide 
publicity  we  announce,  so  far  as  we  can  do  so  without  the 
speaking-tube  of  the  Reichstag,  that  we  fearlessly  meet  the  public 
threats  of  France/ 

The  effect  produced  upon  Moltke  was  the  effect  produced  upon  the 
German  people. 

As  in  the  case  of  the  Austrian  War,  steps  were  taken  to  prevent 
interference.  Russia  was  friendly  because  of  Prussia's  Polish  policy 
and  because  Alexander's  life  was  saved  from  a  Polish  assassin  in  Paris 
in  1867,  and  the  favors  of  the  past  were  added  to  in  the  present  by 
the  advice  to  break  the  Treaty  of  Paris  excluding  Russian  men-of- 
war  from  the  Black  Sea.  The  friendly  treatment  of  Austria  in  the 
treaty  of  peace  and  in  the  interval  made  it  difficult  for  Austria- 
Hungary  to  attack,  although  it  is  well  known  that  Francis  Joseph 
had  agreed  to  join  Napoleon  after  the  first  campaign,  as  did  also 
Italy,  bound  to  Napoleon  rather  than  to  France  for  its  unification. 
The  Queen  of  England  was  friendly — ^her  daughter  had  married  the 
Crown  Prince  of  Prussia — and  after  the  war  broke  out  Bismarck  pub- 
lished Napoleon's  project  to  annex  Belgium  made  to  Bismarck  and 
which  that  astute  statesman  had  had  put  in  writing.  England's  neu- 
trality was  assured,  its  sympathy  and  the  sympathy  of  Europe  gained. 

The  Franco-Prussian  War,  so  craftily  planned  in  advance  and  so 
cleverly  executed,  resulted  in  the  unification  of  the  German  States 
under  the  Prussian  Crown,  and  on  January  18,  1871,  the  King  of 
Prussia  was  proclaimed  German  Emperor  in  the  Palace  of  Versailles.* 

In  view  of  the  Zimmermann  letter,  which  will  be  presently  dis- 
cussed, proposing  a  union  of  Germany,  Mexico,  and  Japan  against 
the  United  States  and  the  partition  of  American  territory  as  the 
price  of  cooperation,  it  is  interesting  to  note  the  careful  preparation 
preceding  a  Prussian  attack.  In  a  passage  previously  quoted  from 
Carl  Schurz,  recounting  an  interview  which  he  had  with  Bismarck 
in  1868,  two  years  before  the  Franco-Prussian  War,  Bismarck  is 
reported  by  that  upright  and  conscientious  man  of  affairs  as  saying, 

^  Bismarck,   Gedanken  und  Erinnerungen,   p.   440. 

'  Just  as  in  1848,  when  the  King  of  Prussia,  who  was  offered  a  crown,  was 
unwilling  to  pick  it  out  of  the  gutter,  so  in  1870  his  successor  was  unwilling 
to  receive  it  from  human  hands.  Thus  Bismarck  says  that  King  William 
"  cared  at  that  time  still  more  for  the  power  and  greatness  of  Prussia  than, 
for  the  constitutional  union  of  Germany.  He  was  free  from  any  ambitious 
calculation  with  regard  to  Germany;  in  1870  he  even  compared  contemptuously 
the  imperial  title  with  that  of  '  Drum-Major '  ...  So  far  as  dynastic 
feeling  was  concerned,  he  felt  more  flattered  in  exercising  the  said  power  simply 
as  the  born  King  of  Prussia,  and  not  as  the  emperor  established  in  virtue  of 
a  constitution."      (Ibid.,  p.  409.) 


12  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

"We  have  to  be  ready,  of  course,  and  we  are."  The  full  significance 
of  this  preparation  would  be  lost  upon  the  reader  who  contents  him- 
self with  the  surface  of  things;  for  Prussian  preparation  involves 
not  merely  a  competent  staff,  a  marvelous  army  and  the  means  of 
supporting  it  in  the  field,  but  the  country  to  be  attacked,  overrun 
and  mastered  by  a  happy  and  unsuspected  cooperation  of  the  invisible 
army,  sent  in  advance  of  the  war,  with  the  invincible  army  crossing 
the  frontier  upon  its  outbreak. 

If  the  spy  is  not  a  Prussian  creation,  it  is  nevertheless  in  Prussia 
and  Prussianized  Germany  that  he  has  approved  himself  and  come 
into  his  own  and  to  honor.  * '  I  have  one  cook  and  a  hundred  spies, ' ' 
the  great  Frederick  was  wont  to  say,  and  it  was  no  less  a  person 
than  William,  King  of  Prussia  and  first  German  Emperor,  who  said, 
*'One  must  not  confine  oneself  to  giving  money  to  spies.  One  must 
also  know  how  to  show  them  honor  when  they  deserve  it." 

The  preparations  for  the  two  wars  which  unified  Germany  were 
planned  and  carried  into  effect  by  Bismarck's  understudy,  one  Stieber 
by  name,  the  King  of  Sleuth-hounds,  to  use  the  title  given  him  by 
Bismarck  himself.^  Shortly  after  the  acquisition  of  the  Duchies  in 
1864  to  the  summer  of  the  war  with  Austria  in  1866,  Stieber  was 
in  Bohemia  posting  "landmarks,"  as  he  called  his  spies,  on  the  line 
of  march  from  Berlin  to  Prague  and  Sadowa,  "disguised,  now  as  a 
photographer,  now  as  a  basket-maker,  or  as  a  travelling  peddler  of 
plastercasts,  or  of  religious  or  pornographic  objects.  And  for  two 
long  years  (from  April,  1864,  to  May,  1866),  he  lived  in  a  traveling 
cart,  going  to  and  fro  and  observing  cities  and  villages,  studying 
the  mental  attitude  of  these  vast  territories  which  he  dotted  with 
spies,  and  where,  but  a  short  time  afterwards,  the  drama  of  Sadowa 
was  to  unfold  itself. ' '  ^ 

Without  going  into  details — for  it  is  only  the  method  that  is  of 
interest  in  this  connection — it  will  suffice  to  say  that ' '  at  each  halting- 
place  of  the  army,  the  houses  where  the  Staff  and  General  Officers, 
together  with  their  suites,  were  to  be  lodged,  were  marked  with  a 
sign.  A  'peasant,' — a  spy, — in  a  blouse  and  wearing  wooden  shoes, 
who  had  preceded  the  invading  army  .  .  .  pointed  out  to  the 
commander  of  the  post  the  location  of  these  houses,  and  gave  to  him 
the  most  detailed  information  in  regard  to  the  strength  and  the  posi- 

'  Where  not  inclosed  in  quotation  marks  this  portion  of  the  text  is  para- 
phrased from  Paul  Lanoir's  volume,  entitled  L'Espionnage  Allemand  en  France 
(Paris;  Coeuaud  &  Cie.,  1908),  translated  and  published  in  English  under  the 
title  of  The  German  Spy  System  in  France  (London;  Mills  &  Boone,  1910). 
This  is  the  work  of  a  specialist  based  upon  tlie  writings  of  Stieber  and  his 
associates. 

2  Lanoir,  L'Espionnage  Allem,and  en  France,  p.  40. 


BETWEEN  THE  UNITED  STATES  AND  GERIMANY      13 

tion  of  the  enemy's  armies,  and  with  regard  to  the  attitude  of  the 
people  and  the  local  resources  in  forage,  meats,  and  vegetables. ' ' ' 
Von  Moltke,  so  chary  of  speech  that  Bismarck  said  of  him  that  he 
could  keep  silent  in  seven  languages,  was  so  deeply  impressed  by 
these  arrangements,  the  nature,  extent,  and  precision  of  the  informa- 
tion, that  he  actually  said  to  Bismarck,  ''Whether  it  was  young 
Stieber" — he  was  then  forty-eight  years  old — ''or  anybody  else  who 
had  charge  of  this  important  service:  what  he  did  was  well  done, 
well  done,  well  done. ' '  ^ 

So  much  for  Austria;  now  as  to  the  preparation  for  the  war 
with  France. 

In  the  first  place,  it  was  necessary  for  Bismarck  to  come  to  an 
understanding  with  his  neighbors  in  order  to  be  free  to  use  Prussia's 
resources  against  the  next  victim.  The  merciful  treatment  of  Austria 
was  not  generosity  but  calculation.  The  treatment  of  Russia  smacked 
of  craft  as  well  as  of  calculation.  It  was  natural  that  Prussia  should 
view  with  sympathy  the  repression  of  the  Polish  uprising  of  1863,  as 
the  interests  of  the  partitioners  of  Poland  were  identical  in  Warsaw 
and  Posen,  and  upon  community  of  interests  understandings  securely 
rest.  But  the  Polish  agreements  concerned  the  past,  and  Bismarck 
was  thinking  now  of  the  future  and  of  France.  In  1867  an  Inter- 
national Exposition  was  held  at  Paris  and  Napoleon  III  made  of  it  a 
brilliant  affair.  The  Czar  Alexander  was  to  grace  the  occasion  by  his 
presence  and  Bismarck  saw  to  it  that  King  William  of  Prussia  and  the 
Emperor  of  All  the  Russias  reached  Paris  together,  so  that  Napoleon 
could  be  watched  and,  by  overtures  to  Alexander,  checkmated — because 
in  autocracies  the  whims  of  the  monarchs  make  and  unmake  nations. 
Stieber,  the  King  of  the  Sleuth-hounds,  accompanied  the  Prussian 
party  and,  on  crossing  the  French  frontier,  he  received  an  urgent 
message  from  his  Parisian  agent  to  see  him  immediately  on  reaching 
Paris.  He  did  so  and  learned  that  on  the  morrow,  June  6th,  the 
Czar  was  to  be  assassinated  by  a  young  Pole  while  attending  the 
Grand  Review  at  Longchamps.  Stieber  at  once  laid  the  matter 
before  Bismarck,  whereupon  the  following  colloquy  took  place : 

"It  would  be  a  cause  for  universal  mourning  if  so  noble  and 
kind  a  prince  as  His  Majesty  Alexander  II  should  fall  by  the 
stroke  of  a  vulgar  assassin.  I  hope  you,  Stieber,  will  do  all 
that  is  necessary  to  prevent  such  a  misfortune." 

"I  have,  of  course,  been  very  careful  not  to  put  the  assassin 
under  arrest;  but  I  have  given  orders  to  one  of  my  best  agents 
to  follow  him  step  by  step  and  not  to  leave  him." 
'  Lanoir,  L'Espionnage  Allemand  en  France,  p.  43.  2  lUd.,  p.  44. 


14  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

''Well  done;  if  by  chance  the  French  police  do  not  arrest 
him  betimes,  there  will  most  certainly  be  near  him,  at  the  pro- 
pitious moment,  one  of  your  agents,  who,  without  doing  anything 
to  prevent  the  shooting,  w-ill  take  hold  of  the  arm  of  the  assassin 
and  deflect  its  mortal  shot." 

* '  I  give  you  my  word  that  things  will  take  this  course. ' ' ' 

And  in  his  memoirs,   Stieber  relates  the  following  observation 
of  Bismarck: 

"Thus,  while  the  crime  will  be  averted,  the  attempt  will 
remain.  Have  you,  my  dear  Stieber,  thought  of  the  political 
consequences  of  such  an  event  ?  Realizing  that  the  French  police 
were  not  able  to  protect  him,  Czar  Alexander  will  leave  France 
with  the  most  unfavorable  impression." 

"I  know  the  Emperor!  If  things  take  the  course  described, 
there  are  many  projects  which  will  never  be  realized,  and  the 
'charmer'  (Napoleon  III)  will  get  nothing  for  all  his  amiabil- 
ity and  projects  of  alliance." 

''Your  Excellency,  I  have  been  thinking  about  all  this  since 
yesterday. ' ' 

"And  if  the  author  of  the  attempt  were  to  escape  the  extreme 
penalty,  and  if  a  jury  of  simple-minded  bourgeois,  weeping  like 
weak  souls  over  the  plea  of  the  counsel  for  the  defense  in  their 
sympathy  for  the  fate  of  wretched  Poland,  should  fail  to  con- 
demn the  assassin  to  death,  this  would  cause  a  treble  excitement 
in  St.  Petersburg,  and  there  would  be  a  deep  and  lasting 
estrangement  between  France  and  Russia  .  .  .,  and  as  for 
myself  I  should  have  one  less  trouble  to  worry  about." 

"Yes,  for  us  Germans,  this  attempt  is  something  provi- 
dential." 

"By  having  the  assassin  arrested,  the  French  police  might 
claim  the  honor  of  the  discovery  of  the  plot ;  they  would  receive 
the  congratulations  and  thanks  for  their  activity  and  solicitude." 

"In  such  a  ease,  Alexander  would  consider  himself  under 
obligations  to  France,  and  as  for  ourselves,  we  would  have  to 
be  on  the  alert  at  St.  Petersburg  and  doubly  so  at  Paris." 

"May  I  ask  who  is  the  assassin?" 

"A  Pole  .  .  .  quite  young:  from  twenty  to  twenty-two 
years  old." 

"A  child  .  .  .  and  a  Pole,"  Bismarck  remarked  with  a 
smile!  "A  Parisian  jury  will  never  condemn  him  to  death;  it 
would  be  contrary  to  all  Mr.  Prud'homme's  middle-class  sym- 
pathies   .     .     ." 

"It  would  be  decidedly  unfortunate  if  this  boy  were  pre- 
vented from  letting  off  his  pistol.  "- 

^  Lanoir,  L'Espionnage  Allemand  en  France,  pp.  59-60.        2  iMd.,  pp.  60-62. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      15 

The  shot  was  fired  and  guided  as  planned.  The  young  Pole  when 
apprehended  calmly  said,  '*I  wished  to  avenge  Poland,  my  beloved 
country.  There  is  no  use  in  questioning  me:  I  have  no  accomplice, 
and  I  alone  take  the  responsibility  for  my  deliberate  act."  '  The  jury 
found  extenuating  circumstances,  and  the  neutrality  of  Russia  was 
fixed  beyond  doubt  by  Bismarck's  scheme,  which  will  be  mentioned 
later,  to  take  advantage  of  the  war  of  1870  to  break  the  provisions 
of  the  Treaty  of  Paris  forbidding  Russia  to  keep  men-of-war  in  the 
Black  Sea. 

Bismarck's  most  immediate  preoccupation  was  to  repeat  the 
triumph  of  Bohemia  on  a  larger — it  could  not  be  a  more  efficient — 
scale  in  France.  Therefore,  on  June  14,  1867,  on  the  day  of  his 
return  to  Berlin  after  the  Paris  outing,  Bismarck  bethought  him  of 
Stieber,  and  sending  for  that  worthy,  he  said: 

"The  liberty  of  action  conferred  upon  you  last  year  will  not 
be  interfered  with ;  and  as  for  your  funds,  I  wonder  if  they  are 
sufficient,  or  do  you  wish  an  increase,  and  if  so  how  much?" 

"Your  Excellency,"  answered  Stieber,  "no  increase  is  neces- 
sary; what  I  have  is  sufficient.  Within  eighteen  months  the 
routes  of  invasion  will  be  ready. ' '  ^ 

And  they  were. 

Without  lingering  over  details,  one  incident  will  show  the  reader 
the  perfection  of  the  system  and  enable  him  to  appreciate  the  impor- 
tance of  its  results.  Some  thirty  thousand  spies  were  scattered  along 
the  line  of  march.  Versailles  swarmed  with  secret  agents.  Appro- 
priate quarters  were  set  apart  for  the  Prussian  invaders  and  head- 
quarters secured  for  the  invisible  army  at  3  Boulevard  du  Roi.  The 
incident,  based  upon  the  account  of  Stieber  and  his  principal  lieu- 
tenants, is  thus  related: 

In  January,  1871,  Jules  Favre  was  designated  to  negotiate 
with  Bismarck  for  the  surrender  of  Paris. 

As  soon  as  this  fact  became  known,  Bismarck  said  to  Stieber : 
"Favre  is  a  man  whom  we  must  not  lose  sight  of  for  a  single 
instant.     I  rely  upon  you,  Stieber." 

"You  need  have  no  fear,"  the  latter  coolly  replied. 

Now,  when  Jules  Favre — who  knew  Avell  Versailles — dis- 
embarked at  the  Sevres  bridge,  he  got  into  an  old  carriage 
requisitioned  and  driven  by  one  of  Stieber 's  lieutenants: 

And  do  you  know  to  what  place  Jules  Favre  was  conducted 
by  the  coachman  of  the  German  police? 

^  Lanoir,  L'Espionnage  Allemand  en  France,  p.  65.  2  iMd.,  pp.  69-70. 


16    A  SURVEY  OF  INTERNATIONAL  RELATIONS 

To  No.  3  of  the  Boulevard  du  Roi,  the  headquarters  of  the 
German  secret  police    .     .     . 

And  it  was  there  that  he  lived  throughout  his  first  sojourn 
in  Versailles,  when  he  was  negotiating  the  conditions  of  the 
surrender  of  the  place. 

Kaltenbach,  the  lieutenant  of  police  who  directed  the  German 
commissariat  service  established  on  the  ground  floor  of  the  hotel, 
came  to  Jules  Favre  and  said: 

"The  greatest  honor  for  a  good  Frenchman  like  myself,  a 
native  of  Versailles" — Kaltenbach  refers  to  himself  in  these 
terms — "is  to  give  shelter  to  an  illustrious  Frenchman  like  you 
(Favre)." 

At  No.  3,  Boulevard  du  Roi,  Jules  Favre  slept  on  the  second 
floor  in  the  very  bed  of  the  spy  Kaltenbach,  and  the  latter, 
immediately  upon  Favre 's  arrival  ,  .  .  introduced  Stieber 
to  him  as  a  servant  to  be  trusted  and  upon  whom  he  could 
depend  with  the  utmost  confidence. 

And  it  was  indeed  Stieber  himself  who  searched  the  trunk 
and  the  pockets  of  Jules  Favre  and  who,  wearing  a  white  apron, 
brought  him  a  cup  of  coffee  every  morning.' 

The  reader  is  now  prepared  to  appreciate  the  following  passage  at 
arms  recounted  by  the  King  of  the  Sleuth-hounds  in  his  memoirs: 

At  the  beginning  of  the  campaign  when  on  our  way  from 
Faulquemont  I  was  invited  to  dine  with  the  chief  (Bismarck) 
and  hie  staff  of  officials  of  the  ministry  of  foreign  affairs. 

We  were  established  in  a  small  peasant's  hut.  After  dinner 
and  while  he  himself  was  preparing  coffee  for  the  entire  com- 
pany, Bismarck  gave  utterance  to  this  prophecy  which  was  to 
be  realized  six  months  afterwards:  "It  is  quite  decided  that 
we  shall  not  return  either  Alsace  or  Lorraine  to  France." 

An  officer  of  the  great  staff  having  remarked:  "Our  army 
is  invincible,"  I  arose  in  a  fury  and  answered:  "Say  rather 
our  armies." 

The  chief  of  police  explained  his  thought  in  the  following  way : 

"The  fighting  army  of  which  you  are  the  chief  remains 
heJiind  you.  Now,  many  months  since,  my  army  has  been  occupy- 
ing the  positions  which  it  reached  in  silence,  and  where,  without 
a  single  rifle,  it  is  noiselessly  accomplishing  a  task  whose  real 
danger  and  importance  I  wish  you  not  to  misjudge."^ 

In  view  of  these  passages  we  can  understand  the  activity  of 
German  partisans  in  the  United  States  in  the  days  when  we 
were  neutral  and  when  Germany,  through  its  Ambassador,  was  pro- 
fessing friendship  for  the  country  to  which  he  was  accredited.    We 

^  Lanoir,  L'Espionnage  Allemand  en  France,  pp.  179-181.         ^  Ibid.,  p.  73. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     17 

could  not,  indeed,  see  the  invisible  army,  like  a  mole  working  in  the 
dark  and  shunning  the  light;  but  we  felt  its  presence,  a  presence 
made  clearer  and  brought  home  to  the  most  confiding  by  the 
Zimmermann  letter,  proving  beyond  peradventure  that  preparations 
had  been  made  and  that  the  stage  was  set  for  the  foreign  allies. 

The  past  was  glorious,  the  future  must  be  safe.  Bismarck  was 
satisfied  with  the  triumphs  of  1866  and  of  1870.  Having  united  Ger- 
many, he  wished  to  consolidate  its  power.  He  therefore  labored  to 
keep  his  neighbors  on  the  west,  east,  and  south  busied  and  apart. 
This  was  his  policy,  and  it  was  successful  in  large  measure. 

The  problem  which  confronted  the  Imperial  German  Government 
after  the  war  of  1870  was  so  to  weaken  France  as  to  make  an  attack 
from  the  west  seem  impracticable  or  futile.  The  indemnity  of  five 
billion  francs  with  which  France  was  saddled  and  the  loss  of  the 
provinces  of  Alsace  and  Lorraine  in  part  were  thought  to  have  accom- 
plished the  desired  result.  Bismarck  believed  that  France  would 
profit  by  any  favorable  occasion  to  recover  the  lost  provinces  of 
Alsace  and  Lorraine,  and  he  therefore  sought  to  prevent  an  alliance 
between  Russia  and  France  which  would  expose  the  new  Germany 
to  an  attack  from  both  sides  in  case  of  a  war  with  France.  He  felt 
that  the  Emperor  of  All  the  Russias  would  be  less  likely  to  consort 
with  a  republic,  and  the  arch-monarchist  therefore  supported  the 
cause  of  republican  government  in  France.  The  modification  of  the 
Treaty  of  Paris,  by  which  Russia  was  permitted  to  become  the  mis- 
tress of  the  Black  Sea,'  with  the  hope  of  Constantinople  and  the 
Dardanelles  looming  large  in  the  near  future  and  a  preponderating 
influence  in  the  Balkans,  if  not  an  annexation  of  the  territory,  seemed 
to  secure  the  eastern  frontier.  Italy  was  under  obligations  to  Prussia 
because,  as  the  result  of  cooperation  with  Prussia  in  its  war  with 
Austria,  it  had  received  the  province  of  Venetia  and  thus  rounded 
out  its  ambitions  to  the  north ;  although  the  failure  to  negotiate  a 
satisfactory  boundary  between  Austria  and  Italy  displeased 
Italian  statesmen,  and  the  failure  to  secure  the  Dalmatian  provinces 
across  the  Adriatic,  in  which  Italian  was  spoken  and  whose  people 
were  apparently  Italian  at  heart,  carried  within  it  the  seeds  of  war. 

'  It  was  therefore  a  favor  of  fate  that  the  situation  oifered  a  possibility 
of  doing  Russia  a  service.  .  .  .  With  regard  to  the  politically  unreasonable, 
and  therefore  in  the  long  run  impossible,  stipulations  which  limited  the  inde- 
pendence of  Russia's  Black  Sea  coasts.  .  .  .  Herein  we  had  a  means  of 
fostering  our   relations   with   Russia. 

With  reluctance,  Prince  Gortschakow  accepted  the  initiative  with  which 
I  had  sounded  him  in  this  direction.  (Bismarck,  Gedanken  und  Erinnerungen, 
pp.   452-453.) 


18    A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Austria-Hungary,  excluded  from  Germany  and  "without  chance  of 
developing  to  the  north  or  the  west,  was  to  be  given  a  field  of  exploi- 
tation to  the  south  through  the  Balkan  peninsula  to  the  -^gean,  until 
such  time  as  "the  logic  of  events,"  as  Bismarck  would  say,  should 
force  the  Imperial  German  Government  to  supplant  Austria. 

To  make  assurance  doubly  sure,  France  was  permitted,  if  not 
encouraged,  to  build  up  a  colonial  empire  in  Africa  and  in  Asia, 
so  as  to  withdraw  attention  from  the  Rhine  and  to  occupy  the  minds 
of  the  statesmen  and  the  resources  of  the  people  with  the  problems 
arising  out  of  colonial  expansion  to  such  a  degree  that  an  attack 
upon  Germany  through  Alsace-Lorraine  for  their  recovery  would  be 
less  likely.  Russia  was  also  to  be  encouraged  to  extend  its  empire 
towards  and  over  western  Asia,  thus  making  of  the  Muscovite  an 
Oriental.  As  a  still  further  assurance,  dissension  was  to  be  sown 
between  France  and  Italy  by  allowing  France  to  seize  African  terri- 
tory, namely  Tunis,  which  Italy  coveted,  in  order  that  the  Teuton 
might  slip  in,  as  it  were,  between  the  two  branches  of  the  Latin 
inheritance.  England  was  to  be  embroiled  with  Russia  because  of 
Russian  expansion  in  Asia,  thus  keeping  those  two  countries  facing 
each  other  in  the  outposts  of  empire  so  as  not  to  trouble  Prussia  in 
its  problem  of  absorbing  the  German  peoples,  as  Prussia  had  already 
absorbed  the  German  States. 

Such  was  the  purpose  and  such  seems  to  have  been  the  plan,  and 
success  outwardly  crowned  the  policy  of  the  Iron  Chancellor.  France 
was,  by  the  Preliminary  Treaty  of  Peace,  signed  at  Versailles,  Feb- 
ruary 26,  1871,  and  later  embodied  in  the  Treaty  of  Frankfort  of 
May  10,  1871,  allowed  three  years  in  which  to  pay  the  huge  indem- 
nity of  approximately  a  billion  dollars,  during  which  time  it  was 
to  be  garrisoned  by  Prussia.  The  patriotism  of  the  French  peasants 
enabled  France  to  pay  off  the  indemnity  and  thus  to  free  its  territory 
from  German  soldiers  before  the  appointed  time.  The  snake  had 
been  scotched,  it  had  not  been  killed.  Therefore,  in  1875,  France  was 
to  be  forced  into  a  war  which  would,  as  Bismarck  said,  "finish  it  off." 
But  French  statesmen  were  unwilling  to  be  driven  into  a  contest  in 
which  their  defeat  was  inevitable.  They  parried  the  blow,  and  the 
year  1875,  full  of  German  provocation,  passed,  and  the  Republic  was 
enabled  to  emerge,  as  it  were,  from  the  ashes  of  empire. 

Matters  apparently  did  not  move  so  rapidly  in  Russia  as  it  had 
been  anticipated.  The  Black  Sea  was  indeed  Russian,  but  Constan- 
tinople and  the  Balkans  lay  in  the  hands  of  the  Turk.  The  Balkan 
countries  were  restless  and  the  Turkish  methods  of  oppression,  cul- 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     19 

minating  in  massacres  of  Christians  and  the  perpetration  of  unspeak- 
able barbarities  in  Bulgaria,  gave  Russia  a  cause  or  pretext  for 
intervention.  The  result  was  the  Russo-Turkish  "War  of  1877-78, 
of  which  Austria-Hungary  and  the  Imperial  German  Government 
were  interested  spectators.  It  may  be,  as  Bismarck  said,  that 
the  Balkan  States  were  "not  worth  the  bones  of  a  Pomeranian 
grenadier, ' '  ^  but  it  was  Prussian  policy  to  rely  in  the  first  instance 
upon  diplomacy  and  to  keep  the  grenadier  for  use  if  diplomacy  failed. 
The  story  of  the  Russo-Turkish  War  is  quickly  told.  After  heroic 
resistance — for  they  have  always  been  physically  brave — the  Turks 
were  beaten  and  the  Russian  army  was  on  its  way  to  Constantinople, 
which  lay  seemingly  within  its  grasp.  The  Treaty  of  San  Stefano 
of  March  3,  1878,  was  concluded  between  victor  and  victim,  but  it 
was  then  supposed  to  be  against  the  interests  of  Great  Britain  to 
have  Russia  installed  at  Constantinople,  and  the  Imperial  German 
Government  began  its  career  as  arbiter  of  the  destinies  of  Europe. 
A  Congress  met  at  Berlin,  under  Bismarck's  presidency,  to  settle 
the  terms  of  peace  between  Russia  and  Turkey  and  to 
adjust  the  Eastern  Question.  The  result  was,  as  far  as  neces- 
sary for  present  purposes,  that  Russia  neither  annexed  nor  estab- 
lished a  protectorate  over  the  Balkan  peoples.  Roumania,  Servia, 
and  Montenegro  were  recognized  as  independent."  Bulgaria  was 
made  an  autonomous  state,  recognizing  the  suzerainty  of  the  Turk.^ 
The  provinces  of  Bosnia  and  Herzegovina,  Serb  in  race  and  Turkish 
in  ownership,  were  handed  over  to  the  indefinite  occupation  of 
Austria-Hungary,  and  the  province  to  the  south,  Novi-Bazar,  was 
to  be  garrisoned  by  Austria-Hungary.* 

^  Speech  in  the  Reichstag  of  December  6,  1876. 

'Bj  Article  XLIII  of  the  Treaty  of  Berlin  of  July  13,  1878,  "The  High 
Contracting  Parties  recognize  the  independence  of  Roumania.  ..."  By  Article 
XXXIV  "  The  High  Contracting  Parties  recognize  the  independence  of  the  Prin- 
cipality of  Servia,  ..."  By  Article  XXVI  "  The  independence  of  Montenegro 
is  recognized  by  the  Sublime  Porte  and  by  all  those  of  the  High  Contracting 
Parties  who  had  not  hitherto  admitted  it."  (British  and  Foreign  State  Papers, 
vol.  69,  pp.  749-767.) 

3  By  Article  I  of  the  treaty  "  Bulgaria  is  constituted  an  autonomous  and 
tributary  Principality  under  the  Suzerainty  of  His  Imperial  Majesty  the  Sultan; 
it  will  have  a  Christian  government  and  a  national  militia."     (Ibid.) 
*  Article  XXV  of  the  treaty  is  as  follows : 

The  Provinces  of  Bosnia  and  Herzegovina  shall  be  occupied  and  admin- 
istered by  Austria-Hungary.  The  Government  of  Austria-Hungary,  not 
desiring  to  undertake  the  administration  of  the  Sanjak  of  Novi-Bazar,  .  .  . 
the  Ottoman  administration  will  continue  to  exercise  its  functions  there. 
Nevertheless,  in  order  to  assure  the  maintenance  of  the  new  political  state 
of  affairs,  as  well  as  freedom  and  security  of  communications,  Austria- 
Hungary  reserves  the  right  of  keeping  garrisons  and  having  military  and 
commercial    roads    in   the    whole   of   this   part    of    the   ancient    Vilayet    of 


20  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  first  great  step  had  been  taken.  It  has  always  been  state- 
craft to  divide  in  order  to  conquer.  Roumania,  Servia,  and  Monte- 
negro were  separated  from  Turkey  and  a  wedge  thrust  in  between 
them  which  might  one  day  be  pushed  to  the  ^gean.  In  the  mean- 
time, the  House  of  Hohenzollern  held  the  crown  of  Roumania,  Servia 
was  to  be  brought  into  dependence  upon  Austria-Hungary,  and  Bul- 
garia was  supplied  with  a  German  princeling.  Thirty  years  later 
Austria-Hungary  severed  the  slender  thread  uniting  Bosnia  and 
Herzegovina  to  the  Ottoman  Empire  by  annexing  the  territories,^ 
and  the  German  Prince  of  the  House  of  Coburg,  likewise  breaking 
the  bond  to  Turkey,  assumed  the  title  of  Czar  of  Bulgaria.^    Just  as 

Bosnia.     To   this   end   the   Governments   of    Austria-Hungary   and    Turkey 

reserve  to  themselves  to  come  to  an  understanding  on  the  details.     (British 

and  Foreign  State  Papers,  vol.  69,  pp.  749-767.) 

By  the  subsequent  agreement  of  April   21,   1879,   between  Austria-Hungary 

and  Turkey,  Austria  exercised  the  right  under  the  treaty  to  garrison  certain 

localities  in  Novi-Bazar.     (Ibid.,  vol.  71,  p.  1134.) 

'  On  October  3,  1908,  Austria-Hungary  denounced  Article  XXV  of  the  Treaty 
of  Berlin  according  to  it  the  rights  of  administrator  in  Bosnia  and  Herzegovina. 
The  material  portion  of  this  denunciation  is  as  follows: 

Bosnia  and  Herzegovina  have  arrived  today — thanks  to  the  assiduous 
work  of  the  Austro-Hungarian  administration — at  a  high  degree  of  material 
and  intellectual  culture;  accordingly  the  moment  appears  to  have  come 
to  crown  the  work  undertaken,  by  granting  to  these  provinces  the  benefits 
of  an  autonomous  and  constitutional  system  of  government,  which  is  ardently 
desired  by  the  entire  population.  The  Imperial  and  Eoyal  Government 
ought,  however,  in  order  to  realize  these  generous  intentions,  to  regulate 
in  a  precise  fashion  the  situation  of  these  two  provinces  and  to  provide 
an  effective  guarantee  against  the  dangers  which  would  be  able  to  menace 
the  stability  of  the  system  established  in  1878.  The  Cabinet  of  Vienna 
accordingly  finds  itself  under  the  imperious  necessity  of  freeing  itself  from 
the  reserves  contained  in  the  Convention  of  Constantinople,  and  of  recover- 
ing, with  regard  to  Bosnia  and  Herzegovina,  its  complete  liberty  of  action. 

At  the  same  time  Austria-Hungary  withdrew  its  garrisons  from  Novi-Bazar, 
stating  that  "  the  Cabinet  of  Vienna  is  pleased  to  hope  that  the  Ottoman 
Government  will  succeed,  without  other  support,  in  maintaining  order  in  the 
Sanjak  and  in  fulfilling  alone  in  these  countries  the  task  which  there  rested 
upon  it,  up  till  now,  through  the  cooperation  of  the  two  Governments."  {Revue 
Generate  de  Droit  International  Public,  xv,  Doc.  35-36.) 

2  TiRNOVo,  October  5,  1908. 

I  have  the  honor  of  informing  you  that  today,  Monday,  September  22 
( October  5 ) ,  His  Highness  the  Prince,  my  August  Sovereign,  guided  by  the 
irrevocable  desire  of  the  people  of  all  Bulgaria  to  remove  the  obstacles  which 
have  until  the  present  retarded  its  regular  development,  and  to  put  an  end  to 
the  causes  which  have  produced,  with  the  neighboring  Empire,  relations  of  a 
nature  to  constantly  disturb  the  peace  and  tranquillity  of  the  Balkans,  has  pro- 
claimed Bulgaria  of  the  north  and  of  the  south  an  independent  monarchy. 

By  this  act  His  Royal  Highness  and  his  Government,  in  realizing  the  unani- 
mous desire  of  the  people,  are  animated  by  the  sole  desire  of  seeing  Bulgaria 
come  into  the  family  of  independent  States,  so  as  to  devote  itself  wholly  to 
peaceful  prosperity. 

The  Government  of  His  Majesty  the  King  of  Bulgaria  is  pleased  to  hope 
that  your  high  Government  will  appreciate  these  legitimate  desires  of  the  people 
of  Bulgaria  and  give  to  the  Royal  Bulgarian  Government  support  and  approval 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     21 

Russia  outwardly  abrogated  a  provision  of  the  Congress  of  Paris 
and  assumed  the  control  of  the  Black  Sea,  contrary  to  its  provisions, 
Austria-Hungary  outwardly  abrogated  the  Treaty  of  the  Congress  of 
Berlin  by  annexing  Bosnia  and  Herzegovina,  as  did  Bulgaria  by 
proclaiming  its  independence.  Just  as  in  1871  Great  Britain  insisted 
upon  a  conference  of  the  Powers  parties  to  the  Treaty  of  Paris  in 
order  to  regularize  what  had  been  done  by  Russia  and  to  prevent  the 
recurrence  of  a  like  incident  in  the  future,  so  in  1908  Great  Britain 
proposed  a  conference  of  the  Powers,  parties  to  the  Congress  of  Berlin 
and  its  treaty,  to  regularize  the  action  of  Austria-Hungary  and  Bul- 
garia, to  adjust  the  Balkan  situation,  and  to  prevent  a  recurrence  of 
this  sort  of  thing  in  the  future.  In  1871  the  conference  was  held 
because  Germany  was  then  only  the  first  among  equals  and  it  suited 
Germany's  purpose  to  meet  in  conference  with  the  signatories  of  the 
Treaty  of  Paris.  It  was  not  held  in  1908  because  Germany  had  by 
this  time  become  the  arbiter  of  Europe  and  it  did  not  suit  the  German 
purpose  to  meet  in  conference  with  the  signatories  of  the  Treaty  of 
Berlin.  In  1871  Bismarck  affected  surprise  at  the  action  of  Russia  and 
cooperated  with  Great  Britain.'  In  1908  Germany  expressed  indig- 
nation that  the  action  of  Austria-Hungary  and  of  Bulgaria  should 
be  questioned  by  the  signatories  of  the  Treaty  of  Berlin;  and  the 
German  Emperor  roundly  stated  that,  in  case  of  an  attack  upon 
Austria-Hungary,  he  would  appear  "in  shining  armor"  by  the  side 
of  his  imperial  ally. 

In  1912  the  first  Balkan  war  broke  out,  in  which  Bulgaria,  Servia, 
Montenegro,  and  Greece  were  allied  against  the  Turk,  not  only  to 
redress  grievances  but  in  effect  to  round  out  their  territories.  The 
Turk  was  quickly  and  badly  beaten,  but  the  allies  fell  out  about  the 
division  of  the  spoils,  Servia,  Montenegro,  and  Greece  being  unwill- 
ing to  renounce  the  fruits  of  victory  in  behalf  of  Bulgaria,  which 

of  this  act  of  the  people.  (Minister  for  Foreign  Affairs  to  American  Minister 
Knowles,  Foreign  Relations  of  the  U.  S.,  1908,  p.  57.) 

See  the  protocol  concluded  between  Bulgaria  and  Turkey  for  the  settlement  of 
railway,  religious,  and  financial  questions,  and  for  the  recognition  of  Bulgarian 
independence,  signed  at  Constantinople,  April  6/19,  1909.  {British  and  Foreign 
State  Papers,  vol.  102,  p.  375.) 

'  In  a  conversation  with  Lord  Odo  Russell,  British  Ambassador  at  Berlin, 
Bismarck  stated  "That  the  Russian  Circular  of  the  19th  October  (denouncing 
the  clauses  in  question)  had  taken  him  by  surprise.  That  while  he  had  always 
held  that  the  Treaty  of  1856  pressed  with  undue  severity  upon  Russia,  he 
entirely  disapproved  of  the  manner  adopted  and  the  time  selected  by  the 
Russian  Government  to  force  the  revision  of  the  Treaty."  (Reported  by  Lord 
Russell  in  a  dispatch  of  November  22,  1870,  to  Lord  Granville,  and  published 
in  the  Parliamentary  Papers  of  1871,  Cd.  245.)  See  in  this  connection  the 
passage  already  quoted  from  Bismarck's  Gedanken  und  Erinnerungen,  supra, 
p.  17. 


22  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

claimed  the  lion's  share/  Bulgaria  refused  to  accept  less  than  its 
demands,  and  the  conference  of  the  Powers  at  London  failed  to 
adjust  the  difficulties.  Bulgaria  appealed  to  the  sword  and 
was  quickly  and  badly  beaten  by  its  former  allies,  Servia,  Monte- 
negro, and  Greece,  to  which  Roumania  was  added.  The  result  was  a 
new  division  of  the  spoils,  by  which  Turkey  obtained  part  of  the 
territory  which  would  otherwise  have  gone  to  Bulgaria  and  which 
Turkey  had  occupied  in  the  meantime,  and  by  which  Bulgaria  re- 
nounced under  compulsion  part  of  the  territory  it  claimed  to  Servia 
and  to  Greece  and  part  of  the  territory  which  it  owned  and  which 
Roumania  coveted.-  Germany  and  Austria-Hungary  consented  to  these 
readjustments;  but  Germany,  Austria-Hungary,  and  Italy  refused 
to  allow  Servia  an  outlet  or,  as  it  is  called,  a  window  on  the  Adriatic, 
and  the  Triple  Alliance  likewise  refused  to  allow  Servia  an  outlet 
on  the  JEgean.  "Why  ?  Because  the  time  was  about  ripe  for  the  wedge 
to  be  driven  through  the  Balkans  and  to  have  its  keen  edge  cut 
through  to  the  Persian  Gulf,  separating  the  Old  World  into  two 
parts,  with  a  line  of  communication  from  the  Kiel  Canal  to  the  Per- 
sian Gulf,  through  Berlin,  Vienna,  and  Bagdad.  If  Germany  had 
come  late  to  the  banquet,  it  nevertheless  arrived  in  time  for  dessert. 

It  is  natural  that  peoples  which  have  dreamed  of  being  united 
under  a  government  of  their  own,  which  would  enable  them  to  secure 
the  respect  abroad  which  they  felt  to  be  their  due,  the  comforts  at 
home  of  which  they  were  deprived,  and  the  development  correspond- 
ing to  a  magnificent  and  dominating  past,  should,  upon  the  realiza- 
tion of  their  prayers  and  of  their  hopes,  yield  to  the  enthusiasm  of 
the  moment  and  give  to  imagination  greater  play  than  peoples  which 
have  passed  through  the  intoxication  of  power  and  have  been  sobered 
by  its  responsibility.  As  the  founder  of  international  law  says  in 
his  immortal  three  books  on  the  Bight  of  War  and  Peace,  ''they  take 
this  course,  as  I  conceive,  with  the  purpose  with  which,  when  things 
have  been  twisted  one  way,  we  bend  them  the  other,  in  order  to 
make  them  straight.  But  this  attempt  to  drive  things  too  far,  is 
often  so  far  from  succeeding,  that  it  does  harm."^ 

It  was  also  natural  that  the  new  Germany  should  set  its  heart 

^  For  the  text  of  the  treaty  of  May  15/30,  1913,  between  the  victorious  allies 
on  the  one  hand  and  Turkey  on  the  other,  see  Martens,  Nouveau  Becueil, 
3me  serie,  tome  viii,  pp.   16-19. 

2  For  the  text  of  the  treaty  between  Roumania,  Greece,  Montenegro,  Servia, 
and  Bulgaria,  signed  at  Bucharest  July  28/August  10,  1913,  see  Martens,  Nouveau 
Recueil,  3me  s§rie,  tome  viii,  pp.  61-74. 

*  Grotius,  De  Jure  Belli  ac  Pads  (1625)  ;  accompanied  by  an  abridged  trans- 
lation by  W.  Whewell,  Cambridge,  1853;  3  vols.,  vol.  1,  p.  9. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY       23 

upon  a  development  of  its  resources  at  least  comparable  to  that  which 
had  taken  place  in  other  countries,  that  it  should  desire  to  reach 
the  seas  just  as  other  countries  have  followed  the  river  to  its  mouth — 
for  the  Rhine  seems  no  less  important  to  the  new  Germany  than  the 
Mississippi  was  to  the  early  Republic.  But  between  Germany  and 
the  North  Sea  lay  Belgium,  Holland,  and  Denmark,  the  Scheldt 
reaching  the  sea  through  Belgium  and  Holland,  the  Rhine  at  Rotter- 
dam. To  the  east  lay  Russia,  and,  though  Russia  may  yield  for  the 
moment,  it  does  not  withdraw. 

If  the  greater  Germany  at  home  seemed  blocked  alike  in  the 
West  and  the  East,  might  not  a  greater  Germany  in  foreign  parts 
be  possible?  Great  Britain,  Spain,  and  Portugal  had  colonized  in 
the  past,  and  distant  provinces,  indeed  empires,  bore  testimony  to 
their  prowess;  and  in  the  very  hour  of  Germany's  unification  terri- 
tories were  annexed.  But  the  desirable  portions  of  the  world's 
surface  were  already  preempted,  and  if  Germany  looked  to  the 
Western  World  the  Monroe  Doctrine  stood  in  the  way.  If  it  turned 
toward  Africa  only  the  tropics  or  undesirable  lands  were  open.  The 
immense  movement  for  colonial  expansion  with  which  Germany  was 
agitated  in  the  eighties  only  resulted  in  the  acquisition  of  inferior 
territories  in  which  the  white  man  might  dominate  but  in  which  he  was 
unwilling  to  dwell. 

There  was,  however,  one  highway  to  the  future. 

The  wedge  thrust  through  Europe,  dividing  the  Old  World,  as  it 
were,  into  two  parts,  was  a  project  attractive  from  its  very  vastness, 
and  the  rewards  were  as  boundless  as  the  horizon.  And  there  was 
something  in  the  dream  to  impress  the  imagination,  even  although 
the  longing  for  power  and  **the  wealth  of  Ormus  and  of  Ind"  might 
have  been  a  sufficient  incentive;  for  the  region  in  which  the  Kaiser 
sought  concessions  was,  if  tradition  be  correct,  the  very  cradle  of  the 
human  race  and  the  origin  of  empire.  It  was  likewise  the  garden 
of  the  early  world,  and  what  man  had  once  done  the  German  could 
do  again.  A  concession,  patience,  industry,  water,  and  out  of  the 
ruins  of  the  past  the  empire  of  the  future  would  be  reared  and  the 
desert  would  again  blossom  as  the  rose.  The  Hohenzollern  was  not 
to  be  inferior  to  the  Babylonian,  the  Assyrian,  the  Mede,  and  the 
Persian.  Pan-Hellenism  was  not  superior  to  pan-Germanism;  nor 
Athens  to — Berlin. 

But  although  diplomacy  worked  like  a  mole  in  the  dark,  the  line 
of  steel  from  Kiel  to  Bagdad  betrayed  like  a  ridge  its  progress. 
Germany's  neighbors  were  not  blind,  and  little  by  little  they  grouped 


24  A  SUEVEY  OF  INTERNATIONAL  RELATIONS 

as  their  interests  dictated.  The  acquisition  of  Tunis  by  France  in 
1881  alienated  Italy  and  apparently  cemented  the  alliance  between 
Italy  and  the  Teutonic  Powers.^  The  acquisition  by  France  of 
Morocco  in  1911  was  disagreeable  to  Germany  and  whetted  the 
Italian  appetite,  only  satisfied  for  the  time  being  by  the  annexation 
of  Tripoli  in  1912  at  the  expense  of  the  Turk.^ 

The  way  was  thus  cleared  for  the  cooperation  of  France  and  Italy. 
Then,  too,  events  had  taken  place  to  the  east  of  the  German  Empire 
which  distressed  it  and  menaced  the  success  of  its  projects.  It  was 
well  enough  to  form  an  alliance  with  Russia,  but  it  was  a  different 
matter  to  form  an  alliance  with  Austria-Hungary  to  protect  it  against 
a  Russian  attack.  Either  could  have  been  maintained,  but  not  both. 
The  treaty  with  Russia  was  secret,  as  were  the  exact  terms  of  the 
Triple  Alliance,  but  secrets  cannot  always  be  hid.  The  mole  inevitably 
comes  to  the  surface.  The  terms  of  the  Russian  alliance  became 
known.    It  was  not  renewed,  and  Russia  and  France,  the  neighbor 

^  The  Triple  Alliance  which  I  first  sought  to  conclude  after  the  peace  of 
Frankfort,  and  about  which  I  had  already  in  September,  1870,  from  Meaux, 
sounded  Vienna  and  St.  Petersburg,  was  an  alliance  of  the  three  emperors  with 
the  additional  idea  that  monarchical  Italy  might  join  it.  It  was  designed  for 
the  struggle  which  I  feared  was  confronting  us  as  between  the  two  European 
tendencies  which  Napoleon  called  Republican  and  Cossack,  and  which,  according 
to  our  present  ideas,  I  should  characterize  on  the  one  hand  as  the  system  of 
organization  on  a  monarchical  basis,  and  on  the  other  hand  as  the  social 
republic  to  the  level  of  which  the  anti-monarchical  evolution  would  sink  gradu- 
ally or  by  leaps.  .  .  .  Since  1871  I  have  sought  for  the  immediate  assurance 
against  those  struggles  in  the  alliance  of  the  three  Emperors,  and  in  the 
endeavor  to  secure  a  firm  support  in  that  alliance  for  the  monarchical  prin- 
ciple in  Italy.     (Bismarck,  Gedanken  und  Erinnerttngen,  pp.  569-570.) 

It  is  our  task  to  keep  our  two  imperial  neighbors  at  peace.  We  shall  cer- 
tainly be  able  to  assure  the  future  of  the  fourth  great  dynasty  in  Italy  to  the 
same  extent  that  we  shall  succeed  in  maintaining  agreement  between  the  three 
imperial  states,  and  in  either  curbing  the  ambition  of  our  two  eastern  neighbors 
or  in  satisfying  that  ambition  by  a  reciprocal  understanding.  Both  are  for  us 
indispensable  not  only  in  the  matter  of  the  European  balance  of  power,  we 
cannot  get  along  without  either  of  them  without  endangering  our  own  position, 
but  the  maintenance  of  an  element  of  monarchical  organization  in  Vienna  and 
St.  Petersburg,  and  in  Rome  on  the  basis  of  the  latter  two,  is  for  us  in  Germany 
a  task  which  coincides  with  the  maintenance  of  our  own  political  organization. 
(Ibid.,  p.  589.) 

Italy  became  a  party  to  the  Triple  Alliance  in  1882. 

2  See  the  treaty  of  peace  between  Italy  and  Turkey,  concluded  at  Lausanne, 
October  18,  1912.    Article  2  of  this  treaty  reads  as  follows: 

The  two  Governments  pledge  themselves  respectively  to  give  immediately 
after  the  signature  of  the  present  Treaty  orders  for  the  recall  of  their 
officers,  their  troops,  as  well  as  of  their  civil  functionaries, — the  Ottoman 
Government  from  the  Tripolitana  and  Cyrenaica,  and  the  Italian  Govern- 
ment from  the  islands  which  it  occupied  in  the  iEgean  Sea. 

The  effective  evacuation  of  the  aforesaid  islands  by  the  Italian  officers, 
troops,  and  civil  functionaries  will  take  place  immediately  after  the  evacua- 
tion of  the  Tripolitana  and  Cyrenaica  by  the  Ottoman  officers,  troops,  and 
civil  functionaries.      (Martens,  Nouveau  Recueil,  3me  serie,  tome  vii,  p.  7.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     25 

on  the  east  and  the  neighbor  on  the  west,  gradually  drifted  into  an 
accord  in  case  of  war  with  Germany, 

In  1901  Queen  Victoria  died  and  her  son,  Edward  VII,  unlike 
the  mother,  believing  that  the  interests  of  his  country  required  an 
understanding  with  France  and  Eussia,  set  about  removing  the 
obstacles  in  the  way  of  cooperation.  He  succeeded,  and  the  Triple 
Alliance '  found  itself  faced  by  the  Triple  Entente,  with  Italy  out- 

'  The  treaty  of  alliance  between  Germany  and  Austria,  concluded  at  Vienna 
on  October  7,  1879,  became  the  Triple  Alliance  by  the  adherence  of  Italy  thereto 
in  May,  1882.  The  material  portion  of  the  treaty  between  Germany  and  Austria 
is  as  follows: 

Art.  I.  Should,  contrary  to  their  hope,  and  against  the  loyal  desire 
of  the  two  High  Contracting  Parties,  one  of  the  two  Empires  be  attacked 
by  Russia,  the  High  Contracting  Parties  are  bound  to  come  to  the  assistance 
one  of  the  other  with  the  whole  war  strength  of  their  Empires,  and  accord- 
ingly only  to  conclude  peace  together  and  upon  mutual  agreement. 

II.  Should  one  of  tlie  High  Contracting  Parties  be  attacked  by  another 
Power,  the  other  High  Contracting  Party  binds  itself  hereby,  not  only  not 
to  support  the  aggressor  against  its  high  ally,  but  to  observe  at  least  a 
benevolent  neutral  attitude  towards  its  fellow  Contracting  Party. 

Should,  however,  in  such  a  case  the  attacking  Power  be  supported  by 
Russia,  either  by  an  active  cooperation  or  by  military  measures  which 
constitute  a  menace  to  the  Party  attacked,  then  the  obligation  stipulated 
in  Article  I  of  this  Treaty,  for  mutual  assistance  with  the  whole  lighting 
force  becomes  equally  operative,  and  the  conduct  of  the  war  by  the  two 
High  Contracting  Parties  shall  in  this  case  also  be  in  common  until  the 
conclusion  of  a  common  peace. 

III.  This  Treaty  shall,  in  conformity  with  its  peaceful  character,  and 
to  avoid  any  misinterpretations,  be  kept  secret  by  the  two  High  Contracting 
Parties,  and  only  be  communicated  to  a  third  Power  upon  a  joint  under- 
standing between  the  tv/o  Parties,  and  according  to  the  terms  of  a  special 
Agreement. 

The  two  High  Contracting  Parties  venture  to  hope  after  the  sentiments 
expressed  by  the  Emperor  Alexander  at  the  meeting  at  Alexandrowo,  that 
the  armaments  of  Russia  will  not  in  reality  prove  to  be  menacing  to  them, 
and  have  on  that  account  no  reason  for  making  a  communication;  should, 
however,  this  hope,  contrary  to  their  expectation,   prove  to  be  erroneous, 
the  two  High  Contracting  Parties  would  consider  it  their  loyal  obligation 
to  let  the  Emperor  Alexander  know,  at  least  confidentially,  that  they  must 
consider  an  attack  on  either  of  them  as  directed  against  both.     (British  and 
Foreign  State  Papers,  vol.   73,   p.  270. ) 
The  official  text  of  the  Triple  Alliance  has  not  been  published,  with  the  excep- 
tion  of  Articles   1,   3,   4,   and   7,   which   appear   in   the   correspondence   between 
Austria-Hungary  and  Italy  issued  by  the  Austro-Hungarian  Government.     These 
articles  are  as  follows: 

1.  The  High  Contracting  Parties  mutually  promise  peace  and  friendship, 
and  shall  not  enter  into  any  alliance  or  engagement  directed  against  any  one 
of  their  respective  States. 

They  bind  themselves  to  proceed  to  negotiations  on  such  political  and 
economic  questions  of  a  general  nature  as  may  arise;  and,  moreover,  promise 
their  mutual  support  within  the  scope  of  their  own  interests. 

3.  If  one  or  two  of  the  High  Contracting  Parties  shoidd  be  attacked 
without  direct  provocation  on  their  part,  and  be  engaged  in  war  with  two 
or  several  Great  Powers  not  signatory  to  this  Treaty,  the  casus  foederis 
shall  apply  simultaneously  to  all  the  High  Contracting  Parties. 

4.  In  the  event  that  a  Great  Power  not  signatory  to  this  Treaty  should 
menace  the  safety  of  the  States  of  one  of  the  High  Contracting  Parties,  and 


26  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

wardly  a  member  of  the  Alliance  but  at  heart  allied  with  the  Entente.* 
The  stage  was  set  and  the  curtain  rose  on  the  1st  day  of  August,  1914. 

There  was,  however,  a  prologue  to  the  play,  as  there  will  be  an 
epilogue,  which  must  perforce  be  left  to  posterity. 

On  the  28th  of  June,  1914,  one  Gabrilo  Princip,  a  subject  of 
Bosnia,  and  of  Servian  race,  shot  and  killed  in  the  city  of  Serajevo, 
in  the  province  of  Bosnia,  Archduke  Francis  Ferdinand,  heir  to  the 
Austro-Hungarian  throne,  and  the  Duchess  of  Hohenberg,  his  mor- 
ganatic wife.  The  Austro-Hungarian  Government  investigated  the 
assassination,  declared  it  to  be  due  to  the  propaganda  for  a  larger 
Servia,  and  that  the  outrage  was  perpetrated  either  with  the  knowl- 
edge of  the  Servian  authorities  or  with  the  connivance  and  coopera- 
tion of  Servian  officials. 

that  the  menaced  party  should  be  forced  to  make  war  on  that  Power,  the 
two  others  bind  themselves  to  observe  toward  their  ally  a  benevolent  neu- 
trality. Each  one  of  them  in  that  case  reserves  to  herself  the  right  to 
participate  in  the  war,  if  she  should  consider  it  appropriate  to  make  com- 
mon cause  with  her  ally.  (Austro-Hungarian  Red  Book  [No.  2],  Appendix 
Nos.  14-16;  Diplomatic  Documents  Relating  to  the  Outbreak  of  the  Euro- 
pean War,  p.  346. ) 

7.  Austria-Hungary  and  Italy,  being  desirous  solely  that  the  territorial 
status  quo  in  the  near  East  be  maintained  as  much  as  possible,  pledge  them- 
selves to  exert  their  influence  to  prevent  all  territorial  modification  which 
may  prove  detrimental  to  one  or  the  other  of  the  Powers  signatory  to  this 
Treaty.  To  that  end  they  shall  communicate  to  one  another  all  such  informa- 
tion as  may  be  suitable  for  their  mutual  enlightenment,  concerning  their  own 
dispositions  as  well  as  those  of  other  Powers.  Should,  however,  the  status 
quo  in  the  regions  of  the  Balkans,  or  of  the  Turkish  coasts  and  islands  in 
the  Adriatic  and  iEgean  Seas  in  the  course  of  events  become  impossible; 
and  should  Austria-Hungary  or  Italy  be  placed  under  the  necessity,  either 
by  the  action  of  a  third  Power  or  otherwise,  to  modify  that  status  quo  by  a 
temporary  or  permanent  occupation  on  their  part,  such  occupation  shall 
take  place  only  after  a  previous  agreement  has  been  made  between  the  two 
Powers,  based  on  the  principle  of  reciprocal  compensation  for  all  advan- 
tages, territorial  or  otherwise,  which  either  of  them  may  obtain  beyond 
the  present  status  quo,  a  compensation  which  shall  satisfy  the  legitimate 
interests  and  aspirations  of  both  parties.  (Ibid.,  Appendix  No.  1,  pp. 
335-336.) 
'  The  documents  relating  to  the  Triple  Entente  are  as  follows : 

Agreement  between  Great  Britain  and  France  respecting  Egypt  and 
Morocco  (London),  April  8,  1904.  (British  and  Foreign  State  Papers, 
vol.  97,  p.  39.) 

Secret  Articles. 

Agreement  between  Great  Britain  and  France  respecting  Newfoundland 
and  Senegambia    (London),  April  8,  1904.      (Ibid.,  p.  31.)  _ 

Agreement  between  Great  Britain  and  Eussia  respecting  China  (St. 
Petersburg),  April   16/28,   1899.      (Ibid.,  vol.   91,  p.   91.) 

Agreement  between  Great  Britain  and  Russia  respecting  Persia,  Afghan- 
istan, and  Thibet  (St.  Petersburg),  August  31,  1907.  (Ibid.,  vol.  100, 
p.  555.) 

Question  of  Armed  Cooperation  between  Great  Britain  and  France, 
1907-14.      (Ibid.,  vols.   100-106.) 

Agreement  between  Great  Britain,  France,  and  Russia  respecting  the 
war  (London),  September  5,  1914.  (Great  Britain,  Treaty  Series  No.  1, 
1915.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     27 

On  the  23d  day  of  July,  1914,  a  lengthy  memorandum  containing 
ten  demands  was  handed  by  the  Austro-Hungarian  Minister  in  Bel- 
grade to  the  Servian  Minister  of  Foreign  Affairs,  with  the  state- 
ment that  an  acceptance  of  and  compliance  with  these  demands  should 
be  notified  to  the  Austro-Hungarian  Minister  within  forty-eight  hours. 
The  demands  were  such  as  to  be  unthinkable  between  large  and 
powerful  nations ;  they  were  inconsistent  with  independence  and  only 
possible  in  the  intercourse  of  a  large  with  a  small  state,  and  then  only 
when  the  larger  state  does  not  believe  in  the  equality  of  nations.' 
The  action  of  Austria-Hungary  was  with  the  knowledge  and  approval 
of  the  Imperial  German  Government.^ 

The  gravity  of  the  ultimatum  was  at  once  seen  by  the  European 
statesmen,  and,  without  entering  into  details,  it  is  sufficient  to  say 
that  an  unsuccessful  effort  was  made  by  Austria-Hungary,  sup- 
ported by  its  ally  "in  shining  armor,"  to  localize  the  Servian 
dispute,  thus  making  of  it  an  Austro-Servian  question  instead  of 
a  matter  of  European  concern,  as  the  Eastern  Question  has  been 
in  times  past;  that  attempts  were  made  by  Russia,  France, 
Great  Britain,  and  Italy  to  persuade  Austria-Hungary  to  extend 
the  time  *  beyond  the  forty-eight  hours  of  the  ultimatum ;  to  con- 
tinue negotiations  with  Servia  and  to  submit  the  matter  to  arbi- 
tration, mediation,  or  conference.* 

Pressure  was  likewise  brought  upon  Servia  by  Russia,  France, 
and  Great  Britain  to  cause  it  to  present  such  a  conciliatory  reply 
as  would  permit  of  negotiation  and  peaceful  settlement.^ 

All  too  dangerously  near  the  expiration  of  the  forty-eight  hours, 
Servia  presented  a  reply  which  accepted,  as  it  seemed  to  disinter- 
ested persons  at  the  time,  some  eight  of  the  ten  demands,  partially 
accepted  another,  and  offered  to  submit  the  last  to  arbitration.  An 
extension  of  time  had  been  refused  and  negotiations  discontinued. 
The  reply  was  held  by  Austria-Hungary  to  be  unsatisfactory;  within 
a  half-hour  of  its  delivery  the  Austro-Hungarian  Minister  was  with- 

'  For  detailed  references  to  diplomatic  correspondence  preceding  the  war 
see  notes,  pp.  36-42. 

2  The  Imperial  and  Royal  Government  apprised  Germany  of  these  views  and 
asked  for  our  opinion.  Whole-heartedly  we  were  able  to  agree  with  our  ally's 
view  of  the  situation,  and  assure  her  that  any  action  considered  necessary  to 
end  the  movement  in  Servia  directed  against  the  very  existence  of  the  Monarchy, 
would  meet  with  our  approval.    .     .     . 

We  therefore  granted  Austria  a  completely  free  hand  in  her  action  towards 
Servia;  we  did  not  participate  in  her  preparations.  (Memorial  laid  before  the 
Imperial  Diet  on  August  3,  1914;  German  White  Book,  1  Mem.;  Diplomatic 
Documents  Relating  to  the  Outbreak  of  the  European  War,  pp.  772-773.) 

'  See  note  2  at  end  of  chapter,  p.  37. 

*  See  note  3  at  end  of  chapter,  p.  39. 

5  See  note  4  at  end  of  chapter,  p.  41. 


28  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

drawn  from  Belgrade  according  to  previous  arrangements;  and,  on 
July  28,  the  Austro-Hungarian  Government  issued  a  formal  declara- 
tion of  war  against  Servia/  "So  when  the  Thebans  had  offered  to 
the  Lacedaemonians  all  that  they  could  in  justice  require,  and  they 
were  yet  for  pushing  matters  further,  Aristides  said,  that, the  good 
cause  passed  then  from  the  party  of  the  latter  to  that  of  the  former. ' '  ^ 

Russia  had  served  notice  that  it  could  not  remain  indifferent  to 
the  Austro-Servian  dispute,  and  on  August  1,  1914,  the  Imperial 
German  Government  declared  war  against  it  on  the  ground  that 
the  mobilization  of  the  Russian  Army  was  an  attack  upon  Germany,* 
although  Russia  insisted  that  the  army  was  mobilized  solely  on  the 
Austro-Hungarian  frontier/  and  offered  to  submit  the  entire  dispute 
to  arbitration.^ 

Germany  declared  itself  to  be  in  a  state  of  war  with  France  on 
the  3d  of  August,  alleging  that  a  French  aeroplane  had  flown  across 
and  had  dropped  bombs  on  German  territory,  thus  violating  the 
neutrality  of  the  German  Empire — a  charge  denied  by  France 
which,  to  prevent  a  border  incident,  had  withdrawn  its  troops 
ten  kilometers  from  the  German  frontier.*^ 

Great  Britain  had  stated  to  Russia  and  to  France  that  public 
opinion  would  not  allow  it  to  be  involved  in  a  war  over  Servia,'^ 
although  events  proved  that  public  opinion  would  allow  Great 
Britain  to  go  to  war  over  the  violation  of  Belgian  neutrality.  In 
order  to  prevent  the   occurrence   of  this   lamentable   event,   Great 

*  According  to  the  instructions  which  I  have  meanwhile  received,  we  shall 
leave  Belgrade  by  train  at  6:30  o'clock  if  diplomatic  relations  are  broken  off. 
(Austro-Hungarian  Minister  to  Servia  to  Austro-Hungarian  Minister  of  Foreign 
Affairs,  dated  Belgrade,  July  25,  1914;  Austro-Hungarion  Red  Book  (No.  1), 
doc.  No.  22;  Diplomatic  Documents  Relating  to  the  Outbreak  of  the  European 
War,  p.  76.) 

The  reply  of  the  Royal  Servian  Government  to  our  demands  of  the  23d 
instant  being  inadequate,  I  have  broken  off  diplomatic  relations  with  Servia  and 
have  left  Belgrade  Avith  the  staff  of  the  legation. 

The  reply  was  handed  to  me  at  5:58  p.  m.  (Austro-Hungarian  Minister  to 
Servia  to  Austro-Hungarian  Minister  of  Foreign  Affairs,  dated  Semlin,  July  25, 
1914;   ilid.,  doc.  No.   24,   p.   77.) 

For  the  text  of  the  declaration  of  war  by  Austria-Hungary  against  Servia, 
see  ihid.,  doc.  No.   37,  p.   99. 

-  Grotius,  De  Jure  Belli  ac  Pads,  lib.  2,  chap.  1 ;  English  translation  of 
1738,  p.   142. 

*  German  White  Book,  doc.  No.  25;  Diplomatic  Documents  Relating  to  Out- 
break  of  the  European  War,  pp.  812-813. 

*  Russian  Orange  Book,  doc.  No.  77;  ibid.,  pp.  1378-1380;  German  White 
Book,  doc.  No.   13;   ibid.,  p.   805. 

5  Russian  Orange  Book,  doc.  No.  67 ;  ibid.,  p.  1373. 

«  French  Yellow  Book,  doc.  No.   136;  ibid.,  p.  687. 

7  "  I  do  not  consider  that  public  opinion  here  would  or  ought  to  sanction 
our  going  to  war  over  a  Servian  quarrel.  If,  however,  war  does  take  place,  the 
development  of  other  issues  may  draw  us  into  it,  and  I  am  therefore  anxious 
to  prevent  it."  British  Secretary  for  Foreign  Affairs  to  British  Ambassador  at 
St.  Petersburg,  July  25,  1914.     {British  Blue  Book,  doc.  No.  24;  ibid.,  p.  895.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     29 

Britain  asked  France  to  state  that  it  would  observe  the  neutrality 
of  Belgium,  to  which  it  was  a  party,  to  which  request  France 
promptly  replied  in  the  affirmative.  Great  Britain  likewise  asked 
Germany  if  it  would  observe  the  neutrality  of  Belgium,  to  which 
it  was  also  a  party,  and  failed  to  receive  an  affirmative  reply.' 
German  troops  having  forcibly  entered  Belgium,  Great  Britain 
declared  war  upon  Germany  on  August  4th. 

Italy,  a  member  of  the  Triple  Alliance,  first  refused  to  line  up 
alongside  of  its  allies,  stating  that  the  war  declared  against  Servia 
was  aggressive,  not  defensive;  that  its  obligation  under  the  Triple 
Alliance  only  extended  to  a  defensive  war — a  statement  which  it  had 
made  a  year  before  to  Austria-Hungary  when  that  Power  requested 
Italian  cooperation  in  the  war  which  Austria-Hungary  then  appar- 
ently contemplated  against  Servia,^  months  before  the  Serajevo 
incident,  which,  to  many  disinterested  observers  at  the  time,  seemed  a 
pretext  rather  than  a  cause.  Italy  later  denounced  the  Triple  Alliance 
and  entered  the  war  on  the  side  of  the  Entente  Allies. 

The  bands  of  steel  from  Kiel  to  the  Persian  Gulf  were  apparently 
to  be  laid  peaceably  if  possible,  by  force  if  need  be,  and  as  the  next 
step  in  the  great  adventure  Servia  should  either  be  annexed  to  Austria 
or  be  made  subservient  to  Austria  and  the  ally  in  shining  armor. 

What  were  the  Austrian  demands  and  what  were  the  Servian 
replies?  Were  these  demands  in  whole  or  in  part  justiciable,  in 
the  sense  that  they  could  be  referred  to  a  court  and  settled  by  the 
recognized  principles  of  justice,  or  were  they  such  as  might  be  arbi- 
trated because  Austria-Hungary  and  Servia  were  parties  to  the 
peaceful  settlement  convention  of  the  First  Hague  Peace  Conference 
of  1899,  advocating  if  not  prescribing  a  resort  to  arbitration  in 
judicial  questions?  And  it  may  be  said  in  passing  that  the  Austro- 
Hungarian  delegation  to  the  Second  Hague  Peace  Conference  came 
to  that  body  in  favor  of  a  treaty  of  arbitration,  and,  upon  its  motion, 
a  clause  was  annexed  to  the  peaceful  settlement  convention,  declaring 
it  to  be  desirable  that,  in  disputes  of  a  legal  nature,  and  especially 
those  involving  the  interpretation   or  application  of  international 

^British  Blue  Book,  No.  1,  doc.  No.  114;  Diplomatic  Documents  Relating 
to  the  Outbreak  of  the  European  War,  p.  976. 

In  the  present  case  the  dispute  between  Austria  and  Servia  was  not 
one  in  which  we  felt  called  upon  to  take  a  hand  .  .  .  our  idea  had 
always  been  to  avoid  being  dra^vn  into  a  war  over  a  Balkan  question. 
If  Germany  became  involved  and  France  became  involved,  we  had  not 
made  up  our  minds  what  we  should  do.  .  .  .  We  were  free  from  engage- 
ments, and  we  should  have  to  decide  what  British  interests  required  us 
to  do.  (British  Secretary  for  Foreign  Affairs  to  British  Ambassador  at 
Paris,    July    29,    1914    [British   Blue   Book,   doc.   No.    87;    ihid.,    p.    949.]) 

2  See  note  5  at  end  of  chapter,  p.  42. 


30 


A  SURVEY  OF  INTERNATIONAL  RELATIONS 


conventions,  resort  should  be  had  to  arbitration.  Servia  had  requested 
arbitration  of  the  differences  between  the  two  countries;  Russia  had 
suggested  arbitration,  and  Great  Britain,  France,  and  Italy  arbi- 
tration, mediation,  or  conference. 

It  is  difficult,  with  the  best  of  intentions,  to  summarize  compli- 
cated statements  in  which  we  are  deeply  interested  without  allowing 
the  personal  equation  to  appear  and  to  color  the  summary.  To  avoid 
this  and  to  allow  each  Nation  to  speak  for  itself  without  the  inter- 
vention of  third  parties,  the  Austro-Hungarian  demands  and  the 
Servian  replies  are  here  reproduced  in  full,  and  placed  side  by  side 
in  parallel  columns: 


Austro-Hungarian  Note  of 
Juhj  23,  1914. 

In  order  to  give  a  solemn  char- 
acter to  this  undertaking  the 
Royal  Servian  Government  shall 
publish  on  the  front  page  of 
its  ''journal  officiel"  of  the  13th 
(26th)  July  the  following  dec- 
laration : 

"The  Royal  Government  of 
Servia  condemns  the  propaganda 
directed  against  Austria  -  Hun- 
gary, of  which  the  final  aim  is 
to  detach  from  the  Austro-Hun- 
garian Monarchy  territories  be- 
longing to  it,  and  it  sincerely  de- 
plores the  fatal  consequences  of 
these  criminal  proceedings. 

"The  Royal  Government  re- 
grets that  Servian  officers  and 
functionaries  have  participated  in 
the  above-mentioned  propaganda 
and  thus  compromised  the  good 
neighborly  relations  to  which  the 
Royal  Government  was  solemnly 
pledged  by  its  declaration  of  the 
31st  of  March,  1909. 

' '  The  Royal  Government,  which 
disapproves  and  repudiates  all 
idea  of  interfering  or  attempting 
to  interfere  with  the  destinies  of 


Reply  of  Servian  Government 
of  July  25,  1914. 

Falling  in,  therefore,  with  the 
desire  of  the  Imperial  and  Royal 
Government,  they  [the  Royal 
Serbian  Government]  are  pre- 
pared to  hand  over  for  trial  any 
Serbian  subject,  without  regard 
to  his  situation  or  rank,  of  whose 
complicity  in  the  crime  of  Sera- 
jevo  proofs  are  forthcoming,  and 
more  especially  they  undertake  to 
cause  to  be  published  on  the  first 
page  of  the  "journal  officiel,"  on 
the  date  of  the  13th  (26th)  July, 
the  following  declaration: 

"The  Royal  Government  of 
Serbia  condemn  all  propaganda 
which  may  be  directed  against 
Austria-Hungary,  that  is  to  say, 
all  such  tendencies  as  aim  at  ulti- 
mately detaching  from  the  Aus- 
tro  -  Hungarian  Monarchy  terri- 
tories which  form  part  thereof, 
and  they  sincerely  deplore  the 
baneful  consequences  of  these 
criminal  movements.  The  Royal 
Government  regret  that,  accord- 
ing to  the  communication  from 
the  Imperial  and  Royal  Govern- 
ment, certain  Serbian  officers  and 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      31 


the  inhabitants  of  any  part  what- 
soever of  Austria-Hungary,  con- 
siders it  its  duty  formally  to 
warn  officers  and  functionaries, 
and  the  whole  population  of  the 
Kingdom,  that  henceforward  it 
will  proceed  with  the  utmost 
rigour  against  persons  who  may 
be  guilty  of  such  machinations, 
which  it  will  use  all  its  efforts 
to  prevent  and  suppress." 


This  declaration  shall  simul- 
taneously be  communicated  to  the 
royal  army  as  an  order  of  the 
day  by  His  Majesty  the  King, 
and  published  in  the  official  bul- 
letin of  the  army. 


The  Royal  Servian  Government 
further  undertakes: 

1.  To  suppress  any  publica- 
tion which  incites  to  hatred  and 
contempt  of  the  Austro  -  Hun- 
garian Monarchy  and  the  general 
tendency  of  which  is  directed 
against  its  territorial  integrity; 


officials  should  have  taken  part  in 
the  above-mentioned  propaganda, 
and  thus  compromised  the  good 
neighborly  relations  to  which  the 
Royal  Serbian  Government  was 
solemnly  engaged  by  the  declara- 
tion of  the  18th  (31st)  March, 
1909,  which  declaration  dis- 
approves and  repudiates  all  idea 
or  attempt  at  interference  with 
the  destiny  of  the  inhabitants  of 
any  part  whatsoever  of  Austria- 
Hungary,  and  they  consider  it 
their  duty  formally  to  warn  the 
officers,  officials,  and  entire  popu- 
lation of  the  Kingdom  that  hence- 
forth they  will  take  the  most 
rigorous  steps  against  all  such 
persons  as  are  guilty  of  such  acts, 
to  prevent  and  to  repress  which 
they  will  use  their  utmost  en- 
deavor. ' ' 

This  declaration  will  be  brought 
to  the  knowledge  of  the  Royal 
Army  in  an  order  of  the  day,  in 
the  name  of  His  Majesty  the 
King,  by  his  Royal  Highness  the 
Cro^vn  Prince  Alexander,  and 
will  be  published  in  the  next  offi- 
cial army  bulletin. 

The  Royal  Government  further 
undertake : 

1.  To  introduce  at  the  first 
regular  convocation  of  the  Skupt- 
china  ^  a  provision  into  the  press 
law  providing  for  the  most  severe 
punishment  of  incitement  to  ha- 
tred or  contempt  of  the  Austro- 
Hungarian  Monarchy,  and  for 
taking  action  against  any  publi- 
1  The  Serbian  Parliament. 


32 


A  SURVEY  OF  INTERNATIONAL  RELATIONS 


2.  To  dissolve  immediately  the 
society  called  Narodna  Odbrana, 
to  confiscate  all  its  means  of 
propaganda,  and  to  proceed  in  the 
same  manner  against  all  other 
societies  and  their  branches  in 
Servia  which  engage  in  propa- 
ganda against  the  Austro-Hun- 
garian  Monarchy.  The  Royal 
Government  shall  take  the  neces- 
sary measures  to  prevent  the  so- 
cieties dissolved  from  continuing 
their  activity  under  another  name 
and  form; 


3.  To  eliminate  without  delay 
from  public  instruction  in  Servia, 
both  as  regards  the  teaching  body 
and  the  methods  of  instruction, 
everything  that  serves,  or  might 
serve,  to  foment  the  propaganda 
against  Austria-Hungary; 


cation  the  general  tendency  of 
which  is  directed  against  the 
territorial  integrity  of  Austria- 
Hungary.  The  Government  en- 
gage at  the  approaching  revision 
of  the  Constitution  to  cause  an 
amendment  to  be  introduced  into 
Article  22  of  the  Constitution  of 
such  a  nature  that  such  publica- 
tion may  be  confiscated,  a  pro- 
ceeding at  present  impossible 
under  the  categorical  terms  of 
Article  22  of  the  Constitution. 

2.  The  Government  possesses 
no  proof,  nor  does  the  note  of  the 
Imperial  and  Royal  Government 
furnish  them  with  any,  that  the 
"Narodna  Odbrana"  and  other 
similar  societies  have  committed 
up  to  the  present  any  criminal 
act  of  this  nature  through  the 
proceedings  of  any  of  their  mem- 
bers. Nevertheless,  the  Royal  Gov- 
ernment will  accept  the  demand 
of  the  Imperial  and  Royal  Gov- 
ernment and  will  dissolve  the 
"Narodna  Odbrana"  society  and 
every  other  society  which  may  be 
directing  its  efforts  against  Aus- 
tria-Hungary. 

3.  The  Royal  Serbian  Govern- 
ment undertake  to  remove  with- 
out delay  from  their  public  edu- 
cational establishments  in  Serbia 
all  that  serves  or  could  serve  to 
foment  propaganda  against  Aus- 
tria-Hungary, whenever  the  Im- 
perial and  Royal  Government 
furnish  them  with  facts  and 
proofs  of  this  propaganda. 


BETWEEN  THE  UNITED  STATES  AND  GEKMANY     33 


4.  To  remove  from  the  mili- 
tary service,  and  from  the  ad- 
ministration in  general,  all  offi- 
cers and  functionaries  guilty  of 
propaganda  against  the  Austro- 
Hungarian  Monarchy  whose 
names  and  deed  the  Austro- 
Hungarian  Government  reserves 
the  right  of  communicating  to 
the  Royal  Government; 


4.  The  Royal  Government  also 
agree  to  remove  from  military 
service  all  such  persons  as  the 
judicial  inquiry  may  have  proved 
to  be  guilty  of  acts  directed 
against  the  integrity  of  the  terri- 
tory of  the  Austro-Hungarian 
Monarchy,  and  they  expect  the 
Imperial  and  Royal  Government 
to  communicate  to  them  at  a  later 
date  the  names  and  the  acts  of 
these  officers  and  officials  for  the 
purposes  of  the  proceedings  which 
are  to  be  taken  against  them. 


5.  To  accept  the  cooperation 
in  Servia  of  representatives  of 
the  Austro  -  Hungarian  Govern- 
ment in  the  suppression  of  the 
subversive  movement  directed 
against  the  territorial  integrity 
of  the  Monarchy; 


5.  The  Royal  Government  must 
confess  that  they  do  not  clearly 
grasp  the  meaning  or  the  scope 
of  the  demand  made  by  the  Im- 
perial and  Royal  Government  that 
Serbia  shall  undertake  to  accept 
the  collaboration  of  the  organs  of 
the  Imperial  and  Royal  Govern- 
ment upon  their  territory,  but 
they  declare  that  they  will  admit 
such  collaboration  as  agrees  with 
the  principle  of  international 
law,  with  criminal  procedure,  and 
with  good  neighborly  relations. 


6.  To  take  judicial  proceedings 
against  accomplices  in  the  plot  of 
the  28th  of  June  who  are  on  Ser- 
vian territory.  Delegates  of  the 
Austro  -  Hungarian  Government 
will  take  part  in  the  investiga- 
tion relating  thereto; 


6.  It  goes  without  saying  that 
the  Royal  Government  consider  it 
their  duty  to  open  an  inquiry 
against  all  such  persons  as  are, 
or  eventually  may  be,  implicated 
in  the  plot  of  the  15th  (28th) 
June,  and  who  happen  to  be 
within  the  territory  of  the  king- 
dom. As  regards  the  participa- 
tion in  this  inquiry  of  Austro- 
Hungarian  agents  or  authorities 


34 


A  SURVEY  OF  INTERNATIONAL  RELATIONS 


7.  To  proceed  without  delay  to 
the  arrest  of  Major  Voja  Tanko- 
sitch  and  of  the  individual  named 
Milan  Ciganovitch,  a  Servian 
State  employee,  who  have  been 
compromised  by  the  results  of  the 
preliminary  investigation  at  Sera- 
jevo; 


8.  To  prevent  by  effective 
measures  the  participation  of  the 
Servian  authorities  in  the  illicit 
traffic  in  arms  and  explosives 
across  the  frontier;  to  dismiss 
and  punish  severely  the  officials 
of  the  frontier  service  at  Schabatz 


appointed  for  this  purpose  by  the 
Imperial  and  Royal  Government, 
the  Royal  Government  cannot  ac- 
cept such  an  arrangement,  as  it 
would  be  a  violation  of  the  Con- 
stitution and  of  the  law  of  crim- 
inal procedure;  nevertheless  in 
concrete  cases  communications  as 
to  the  results  of  the  investigation 
in  question  might  be  given  to  the 
Austro-Hungarian  agents. 

7.  The  Royal  Government  pro- 
ceeded, on  the  very  evening  of 
the  delivery  of  the  note,  to  arrest 
Commandant  Voislav  Tanko- 
sitch.  As  regards  Milan  Cigano- 
vitch, who  is  a  subject  of  the 
Austro-Hungarian  Monarchy  and 
who  up  to  the  15th  (28th)  June 
was  employed  (on  probation)  by 
the  directorate  of  railways,  it  has 
not  yet  been  possible  to  arrest 
him. 

The  Austro-Hungarian  Govern- 
ment are  requested  to  be  so  good 
as  to  supply  as  soon  as  possible, 
in  the  customary  form,  the  pre- 
sumptive evidence  of  guilt,  as 
well  as  the  eventual  proofs  of 
guilt  which  have  been  collected 
up  to  the  present,  at  the  inquiry 
at  Serajevo,  for  the  purposes  of 
the  latter  inquiry. 

8.  The  Serbian  Government 
will  reinforce  and  extend  the 
measures  which  have  been  taken 
for  preventing  the  illicit  traffic 
of  arms  and  explosives  across  the 
frontier.  It  goes  without  saying 
that  they  will  immediately  order 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     35 


and  Lozniea  who  have  been  guilty     an  inquiry  and  will  severely  pun- 


of  having  assisted  the  perpe- 
trators of  the  Serajevo  crime  by 
facilitating  their  passage  across 
the  frontier; 

9.  To  furnish  the  Imperial 
and  Royal  Government  with  ex- 
planations regarding  the  unjus- 
tifiable utterances  of  high  Ser- 
vian officials,  both  in  Servia  and 
abroad,  who,  notwithstanding 
their  official  positions,  did  not 
hesitate  after  the  crime  of  the 
28th  of  June  to  give  utterance, 
in  published  interviews,  to  expres- 
sions of  hostility  to  the  Austro- 
Hungarian  Government ;  and 
finally, 


ish  the  frontier  officials  on  the 
Schabatz-Loznica  line  who  have 
failed  in  their  duty  and  allowed 
the  authors  of  the  crime  of  Sera- 
jevo to  pass. 

9,  The  Royal  Government  will 
gladly  give  explanations  of  the 
remarks  made  by  their  officials, 
whether  in  Serbia  or  abroad,  in 
interviews  after  the  crime,  and 
which,  according  to  the  statement 
of  the  Imperial  and  Royal  Gov- 
ernment, were  hostile  towards  the 
Monarchy,  as  soon  as  the  Imperial 
and  Royal  Government  have 
communicated  to  them  the  pas- 
sages in  question  in  these  re- 
marks, and  as  soon  as  they  have 
shown  that  the  remarks  were 
actually  made  by  the  said  offi- 
cials, although  the  Royal  Govern- 
ment will  itself  take  steps  to  col- 
lect evidence  and  proofs. 

10.  The  Royal  Government 
will  inform  the  Imperial  and 
Royal  Government  of  the  execu- 
tion of  the  measures  comprised 
under  the  above  heads,  in  so  far 
as  this  has  not  already  been  done 
by  the  present  note,  as  soon  as 
each  measure  has  been  ordered 
and  carried  out. 

*'If  the  Imperial  and  Royal 
Government  are  not  satisfied  with 
this  reply,  the  Serbian  Govern- 
ment, considering  that  it  is  not  to 
the  common  interest  to  precipitate 

'^  Austro-Hungarian  Red   Book,   No.    1,   doc.   No.    7;    Diplomatic   Documents. 
Relating  to  the  Outbreak  of  the  European  War,  pp.   16-17. 


10.  To  notify  the  Imperial  and 
Royal  Government  without  delay 
of  the  execution  of  the  measures 
comprised  under  the  preceding 
heads. 

The  Austro-Hungarian  Govern- 
ment awaits  the  reply  of  the 
Royal  Government  at  the  latest 
by  6  o'clock  on  Saturday  even- 
ing, the  25th  of  July.^ 


36    A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  solution  of  this  question,  are 
ready,  as  always,  to  accept  a 
pacific  understanding,  either  by 
referring  this  question  to  the  de- 
cision of  the  International  Tri- 
bunal of  The  Hague,  or  to  the 
Great  Powers  which  took  part  in 
the  drawing  up  of  the  declara- 
tion made  by  the  Serbian  Govern- 
ment on  the  18th  (31st)  March, 
1909."^ 

A  distinguished  American  statesman,  of  large  experience  in  for- 
eign affairs,  declared  at  the  time,  that  the  Austro-Hungarian  note  was 
purposely  couched  in  such  terms  as  rendered  a  satisfactory  reply 
impossible,  that  the  intent  of  Austria-Hungary  could  only  be  to  pre- 
vent such  a  reply,  and  that  if  Servia  had,  in  an  effort  to  avert  the 
war,  accepted  the  Austro-Hungarian  terms,  it  would  have  ceased  to 
be  an  independent  nation.  Whether  this  is  so  or  not,  whether  the 
assassination  of  the  Austro-Hungarian  heir  was  cause  or  pretext, 
whether  Austria-Hungary  had  ulterior  purposes  seeking  the  subjec- 
tion of  Servia  to  its  will  and  the  will  of  its  more  powerful  ally,  are 
questions  for  the  future  to  determine.  The  fact  is  that  Austria- 
Hungary  declared  war  on  Servia  on  the  28th  day  of  July,  that  the 
Imperial  German  Government  declared  war  against  Russia  on  the 
1st  of  August,  that  the  Imperial  German  Government  declared  war 
against  France  on  the  3d  of  August,  that  Great  Britain  declared 
war  against  Germany  on  the  4th  of  August,  and  that  other  nations, 
for  various  reasons,  have  from  time  to  time  become  parties  to  the 
conflict. 

^  Serlian  Blue  Book,  doc.  No.  39 ;  Diplomatic  Documents  Relating  to  the 
Outbreak  of  the  European  Wa/r,  pp.  1473-1476. 

No+e  1. — Documents  showing  the  localization  of  the  Austro-Serbian  dispute 
are  to  be  found  in  Diplomatic  Documents  Relating  to  the  European  War,  at 
the    pages    noted. 

"  We  cannot  allow  our  demands,  which,  as  a  matter  of  fact,  do  not 
contain  anything  unusual  in  the  intercourse  between  States  which  ought  to 
be  living  in  peace  and  friendship,  to  become  the  object  of  negotiations  and 
compromises;  and,  with  due  regard  to  our  economic  interests,  we  cannot 
accept  a  political  method  which  would  enable  Servia  to  prolong  the  crisis 
at  her  pleasure."  (Austro-Hungarian  Red  Book,  No.  1,  doc.  No.  9;  ibid., 
p.   21.) 

See  also  for  further  statements  of  the  Austrian  attitude  documents  No.  10 
(p.  22),  No.  11  (p.  23),  No.  14  (p.  24),  No.  20  (p.  75),  No.  26  (p.  81),  No.  32 
(p.  87),  No.  44  (p.  106),  No.  47  (p.  108),  No.  48  (p.  110)  ;  British  Blue  Book, 
No.  1,  docs.  No.  5    (p.  879),  No.  48    (p.  918),  No.   118    (p.  979). 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     37 

The  Russian  attitude  that  the  dispute  was  a  European,  not  an  Austro- 
Hungarian  or  Servian  one,  and  that  it  could  not  therefore  be  localized,  is 
briefly  recorded  in  the  following  telegram  from  the  Imperial  German  Ambassador, 
dated  St.  Petersburg,  July  24,  to  the  Imperial  German  Chancellor: 

The    Minister    [Sazanof]    indulged    in    immoderate    accusations    against 
Austria-Hungary  and  he  was  very  much  agitated.     He  declared  most  posi- 
tively that  Russia  could  not  under  any  circumstances  permit  of  the  Servo- 
Austrian  difficulty  being  settled  between  the  two  parties  concerned.      (The 
German  White  Book,  doc.  No.  4,  p.  802.) 
The  following  statement  in  the  dispatch  from  the  British  Ambassador,  dated 
Vienna,  July  27,  1914,  to  the  British  Secretary  of  State,  relating  the  substance 
of  an  interview  of  the  Russian  Ambassador  with  the  Austro-Hungarian  Under- 
Secretary  of  State,  is  illuminating: 

"  He  told  him  that,  having  just  come  back  from  St,  Petersburg,  he  was 

well  acquainted  with  the  views  of  the  Russian  Government  and  the  state 

of  Russian  public  opinion.     He  could  assure  him  that  if  actual  war  broke 

out  with  Servia  it  would  be  impossible  to  localize  it,  for  Russia  was  not 

prepared  to  give  away  again,  as  she  had  done  on  previous  occasions,  and 

especially    during   the    annexation   crisis    of    1909."      (British   Blue   Book, 

No.    1,  doc.  No.   56,  p.  928.) 

For  further  statements  of  the  Russian  attitude,  see  Austro-Hungarian  Red 

Book   (No.  1),  docs.  Nos.  15  and  16    (p.  26);   The  Belgian  Grey  Book,  No.  2, 

doc.  No.  7   (p.  428)  ;  The  British  Blue  Book,  No.  1,  docs.  No.  6   (p.  880),  No.  7 

(p.  882),  No.  94    (p.  958),  No.  95    (p.  959);   The  French   Yellow  Book,  docs. 

No.  18  (p.  564),  No.  52  (p.  605)  ;  The  German  White  Book  (p.  771)  ;  The  Russian 

Orange  Book,  No.   1,  docs.  Nos.  9  and   10    (p.   1339). 

For  British  attitude  that  it  was  not  directly  interested  in  the  merits  of 
the  dispute,  but  in  its  international  aspect  in  so  far  as  it  concerned  the  peace 
of  Europe,  see  Austro-Hungarian  Red  Book,  No.  1,  doc.  No.  41  (p.  103)  ;  British 
Blue  Book,  No.  I,  docs.  No.  5  (p.  879),  No.  24  (p.  895),  No.  25  (p.  896),  No.  48 
(p.  918),  No.  87  (p.  948),  No.  91  (p.  953),  Nos.  115  and  116  (p.  977)  ;  French 
Yelloio  Book,  docs.  No.  19  (p.  565),  No.  36  (p.  588),  No.  66  (p.  617)  ;  Russian 
Orange  Book,  No.  1,  doc.  No.  20   (p.  1348). 

The  German  attitude  in  support  of  localization  is  briefly  and  impressively 
stated  in  the  following  telegram  dated  at  Paris,  July  24,  1914,  from  the  Austro- 
Hungarian  Ambassador  to  the  Austro-Hungarian  Minister  of  Foreign  Affairs: 
"  Baron  Schoen,  following  out  his  instructions,  will  declare  today  that 
our  dispute  with   Servia  is   regarded  by  the  Berlin   Cabinet  as  an  affair 
concerning  solely  Austria-Hungary  and  Servia. 

"  In  connection  with  this  information,  he  will  make  it  imderstood  that, 

should  a  third  Power  try  to  intervene,  Germany,  true  to  the  obligations 

of  her  Alliance,  would  be  found  on  our  side."     (Austro-Hungarian  Red  Book, 

No.   1,  doc.  No.   12,  p.  24.) 

For   further    references   to    Germany's   attitude,    see   Austro-Hungarian   Red 

Book,  No.  1,  docs.  No.  16   (p.  26),  No.  45   (p.  107)  ;  Belgian  Grey  Book,  No.  2, 

doc.  No.  10    (p.  432);  British  Blue  Book,  No.  1,  docs.  No.  2    (p.  864),  No.  9 

(p.  883),  No.  46   (p.  916),  Nos.  81,  82,  and  83    (p.  945)  ;  French  Yelloio  Book, 

docs.  No.   27    (p.  579),  No.   30    (p.  582),  No.  37    (p.   589),  No.   56    (p.   607), 

No.  57    (p.  609);  German  White  Book,  Mem.  1    (p.  771),  docs.  No.  1    (p.  798), 

No.    15    (p.   806),  No.   30    (p.   815);    Russian  Orange  Book,  No.   1,  docs.  Nos. 

7  and  8    (p.  1338),  No.  18    (p.  1347),  No.  36    (p.  1470). 

Note  2. — Request  for  extension  of  the  time-limit  in  Austro-Himgarian  demands. 
On  July  24,  1914,  the  Russian  Minister  of  Foreign  Affairs  sent  the  following 
telegram  to  the  Russian  Charge  d'Affaires  at  Vienna: 

Please  convey  the  following  message  to  the  Austro-Hungarian  Minister 
for  Foreign  Affairs: 

"  The  Communication  made  by  the  Austro-Hungarian  Government  to 
the  Powers  the  day  after  the  presentation  of  the  ultimatum  at  Belgrade 
affords  to  the  Powers  a  period  which  is  quite  insufficient  to  enable  them 


38  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

to  take  any  steps  which  might  help  to  smooth  away  the  difSculties  that 
have   arisen. 

"  In  order  to  prevent  the  consequences,  incalculable  and  equally  fatal 
to  all  the  Powers,  which  may  result  from  the  course  of  action  followed  by 
the  Austro-Hungarian  Government,  it  seems  to  us  to  be  above  all  essential 
that  the  period  allowed  for  the  Servian  reply  should  be  extended.  Austria- 
Hungary,  having  declared  herself  to  be  disposed  to  inform  the  Powers  of 
the  facts  elicited  by  the  inquiry  upon  which  the  Imperial  and  Royal  Govern- 
ment base  their  accusations,  should  equally  allow  them  sufficient  time  to 
study  those  facts. 

"  In  this  case,  if  the  Powers  were  convinced  that  certain  of  the  Austrian 
demands  were  well-founded,  they  would  be  in  a  position  to  offer  corre- 
sponding advice  to  the  Servian  Government. 

"  A  refusal  to  prolong  the  term  of  the  ultimatum  would  render  nuga- 
tory the  step  taken  by  the  Austro-Hungarian  Government  in  regard  to  the 
Powers,  and  would  be  in  contradiction  to  the  very  bases  of  international 
relations. 

"  Communicated  to  London,  Rome,  Paris,  Belgrade."      (Russian  Orcmge 
Book,  No.   1,  doc.  No.  4,  p.   1335-1336.) 
On  that  date  the   Russian   Minister  of   Foreign  Affairs   sent   the   following 
telegram  to  the  Russian  Representatives  at  London,  Berlin,  Rome,  and  Paris: 
With  reference  to  my  telegram  of  today  to  Kudacheff  [Russian  Charg6 
d'Affaires    in   Vienna]    we   trust   that   the   Government   to   which   you   are 
accredited  will  share  the  Russian  point  of  view  and  will  at  once  intrust 
their  Representative  at  Vienna  to  hold  similar  language. 
Communicated  to  Belgrade.     {Ibid.,  No.  5,  p.  1336.) 
Under  date  of  July  25,  1914,  Russian  Charg6  d'Affaires  at  Vienna  telegraphed 
Russian  Minister  of  Foreign  Affairs:     "I  have  just  heard  from  Macchio  that 
the    Austro-Hungarian    Government    refuse    our    proposal    to    extend    the    time- 
limit  of  the  note."     (Ibid.,  No.  12,  p.  1340.) 

For  further  statements  of  the  Russian  attitude  on  this  matter  see  Austro- 
Hungarian  Red  Book,  No.  1,  doc.  No.  21  (p.  75)  ;  British  Blue  Book,  No.  1, 
docs.  No.  13  (p.  887),  No.  40  (p.  912);  French  Yellow  Book,  docs.  No.  38 
(p.  590),  Nos.  42  and  43  (p.  593),  No.  45  (p.  595);  Russian  Orange  Book, 
No.  1,  doc.  No.  11    (p.  1340). 

The  Austro-Hungarian  attitude  towards  the  Russian  proposal  is  thus  stated 
by  the  Austro-Hungarian  Minister  for  Foreign  Affairs: 

"  The  Russian  Charg6  d'Affaires  has  Informed  me  by  telegraph  that  his 
Government  has  urgently  instructed  him  to  demand  an  extension  of  the 
time-limit  in  the  ultimatum  to  Servia.  I  request  you  to  reply  to  him  in 
my  behalf,  that  we  cannot  consent  to  an  extension  of  the  time-limit.  You 
will  please  add  that,  even  after  the  breaking  off  of  diplomatic  relations, 
Servia  will  be  in  a  position  to  bring  about  an  amicable  settlement  by  an 
unconditional  acceptance  of  our  demands.  In  such  case,  however,  we  would 
be  compelled  to  demand  from  Servia  an  indemnification  for  all  costs  and 
damages  caused  to  us  by  our  military  measures."  (Austro-Hungarian  Red 
Book,  No.   1,  doc.  No.  20,  p.  75.) 

"  As  to  the  explanations  given  by  the  Russian  Government  in  substantia- 
tion of  its  request,  they  appear  to  be  based  upon  an  erroneous  conception  of 
the  premises.    Our  note  to  the  Powers  was  by  no  means  meant  as  an  invita- 
tion to  them  to  inform  us  of  their  views  on  this  matter,  but  simply  to  convey 
information  as  a  matter  of  international  courtesy."      (Ibid.,  doc.  No.   21, 
p.   76.) 
Further  statements  of  the  Austro-Hungarian  attitude  are  Austro-Hungarian 
Red  Book,  No.  1,  docs.  No.  9    (p.  21),  No.  26    (p.  81);   Russian  Orange  Book, 
No.  1,  doc.  No.   12    (p.  1340). 

The  British  attitude  towards  the  Russian  proposal  is  stated  within  the 
compass  of  a  line,  when,  under  date  of  July  25,  the  British  Secretary  of  State 
for  Foreign  Affairs  instructed  the  British  Ambassador  at  Vienna  that  "  You 
may  support  in  general  terms  the  step  taken  by  your  Russian  colleague." 
(British  Blue  Book,  No.  1,  doc.  No.  26,  p.  897.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     39 

For  further  statements  of  the  British  attitude  on  the  phase  of  the  question 
see  Austro-Hungarian  Red  Book,  No.  1,  doc.  No.  10  (p.  22)  ;  British  Blue  Book 
No.  1,  docs.  No.  3  (p.  864),  No.  5  (p.  879),  No.  6  (p.  880),  No.  11  (p.  885);' 
French  Yelloiv  Book,  docs.  No.  40  (p.  591),  No.  41  (p.  592);  Russian  Oranae 
Book,  No.   1,  doc.  No.   16    (p.   1346). 

The  French  attitude  towards  the  Russian  proposal  is  thus  stated  by  the 
Russian  Charge  d' Affaires  in  a  telegram  dated  July  25,  1914: 

"I  have  received  your  telegram  of  the  11th  (24th)  July  respecting  the 
extension  of  the  time-limit  of  the  Austrian  ultimatmn,  and  I  have  made 
the  communication  in  accordance  with  your  instructions.  The  French  Repre- 
sentative at  Vienna  has  been  furnished  with  similar  instructions."  (Russian 
Orange  Book,  No.  1,  doc.  No.   15,  p.  1345.) 

For  further  expressions  of  the  French  attitude  on  this  question  see  French 
Yellow  Book,  docs.  No.  25  (p.  576),  No.  31  (p.  584),  No.  46  (p.  595),  No.  75 
(p.  624),  No.   139    (p.  689). 

The  German  attitude  towards  the  Russian  proposal  is  contained  in  the 
following  quotations: 

"  Prince  Lichnowsky  [German  Ambassador  in  London]  said  that  Austria 
might  be  expected  to  move  when  the  time-limit  expired  unless  Servia  could 
give  unconditional  acceptance  of  Austrian  demands  in  toto."  (Telegram 
from  British  Secretary  of  State  to  British  Chargg  d'Affaires  at  Berlin, 
British  Blue  Book,  No.  1,  doc.  No.  11,  pp.  885-886.) 

"  Secretary  of  State  [Germany]  said  that  he  did  not  know  what  Austria- 
Hungary  had  ready  on  the  spot,  but  he  admitted  quite  freely  that  Austro- 
Hungarian  Government  wished  to  give  the  Servians  a  lesson,  and  that  they 
meant  to  take  military  action.  He  also  admitted  that  Servian  Government 
could  not  swallow  certain  of  the  Austro-Hungarian  demands."  (Telegram 
from  British  Charge  d'Affaires  at  Berlin  to  the  British  Secretary  of  State, 
ihid.,  doc.  No.   18,  pp.  891-892.) 

For  further  statements  as  to  the  German  attitude  see  Russian  Orange  Book, 
No.  1,  doc.  No.  14  (p.  1345)  ;  British  Blue  Book,  No.  1,  doc.  No.  11  (p.  885)  ; 
French  Yelloio  Book,  doc.  No.  41    (p.  592). 

The  Italian  attitude  towards  the  Russian  proposal  is  contained  in  the 
following  dispatch,  dated  July  25,  1914,  from  the  French  Ambassador  at  Rome 
to  the  Acting  Minister  for  Foreign  Affairs: 

"  The  Russian  Ambassador  has  carried  out  at  the  Consulta  the  demarche 
which  M.  SazaHof  requested  the  representatives  of  Russia  at  Paris,  Berlin, 
Rome,  and  Bucharest  to  undertake,  the  object  of  which  was  to  induce  these 
various  Cabinets  to  fake  action  similar  to  that  of  Russia  at  Vienna,  with 
a   view   of   obtaining   an   extension   of   the   time-limit    imposed   on    Servia. 

"  In  the  absence  of  the  Marquis  di  San  Giuliano,  M.  Salandra  and 
M.  di  Martino  replied  that  they  would  put  themselves  into  communication 
with  the  Minister  for  Foreign  Affairs,  but  that  his  reply  could  not  reach 
them  until  towards  6  o'clock,  that  is  to  say,  too  late  to  take  any  step  at 
Vienna."      {French  Yellow  Book,  doc.  No.  44,  p.  594.) 

Note  3. — The  following  is  a  list  of  the  various  proposals  emanating  from  or 
meeting  with  the  approval  of  Great  Britain,  France,  Italy,  and  Russia  for  the 
peaceful  settlement  of  the  Austro-Servian  dispute: 

Mediation  Pkoposals. 

British  proposal  that  Servian  reply  be  considered  by  Austria  as  basis  for 
discussion.  Austro-Hungarian  Red  Book,  No.  1,  docs.  No.  38  (p.  99), 
No.  41  (p.  103),  No.  43  (p.  105),  No.  44  (p,  106)  ;  British  Blue  Book 
No.  1,  docs.  No.  27  (p.  898),  No.  34  (p.  902),  No.  46  (p.  916), 
No.  58  (p.  930),  No.  63  (p.  932),  No.  76  (p.  940),  No.  86  (p.  948); 
French  Yelloio  Book,  doc.  No.  92  (p.  650)  ;  Russian  Orange  Book, 
No.   1,  doc.  No.  55    (p.   1366). 

.     Austrian   attitude.     Austro-Hungarian  Red  Book,   No.    1,   docs. 

No.  29  (p.  85),  No.  39  (p.  101),  No.  44  (p.  106);  British  Blue  Book, 
No.  1,  docs.  No.  61   (p,  931),  No.  62  (p.  931),  No.  75  (p.  939)  ;.  Fre^ich 


40         A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Yellow   Book,   doc.   No.    83    (p.    644)  ;    German   White   Book,    Mem.    1 
(p.   771). 

German  attitude.    British  Blue  Book,  No.  1,  doc.  No.  34  (p.  902)  ; 


French  Yellow  Book,  doc.  No.  83  ( p.  644 )  ;  Oerman  White  Book,  Mem.  1 
(p-  771). 

British  proposal  for  modiation  by  France,  Germany,  Great  Britain,  and 
Italy.  Belgian  Orey  Book,  No.  1,  doc.  No.  6  (p.  363);  British  Blue 
Book,  No.  1,  docs.  No.  10  (p.  884),  No.  11  (p.  885),  No.  24  (p.  8!)5), 
No.  25  (p.  890),  No.  37  (p.  903),  No.  Ill  (p.  974);  French  Yellow 
Book,  docs.  No.  32  (p.  585),  No.  34  (p.  586),  No.  36  (p.  588),  No.  41 
(p.  592),  No.  69  (p.  619),  No.  71  (p.  620);  Oerman  White  Book, 
Mem.  5  (p.  821),  doc.  No.  30  (p.  815);  Russian  Orange  Book,  No.  1, 
doc.  No.  22    (p.   1349). 

.     Austrian  attitude.     Austro-Hungarian  Red  Book,  No.   1,  Intro. 

(p.  3)  ;  British  Blue  Book,  No.  1,  docs.  No.  61  (p.  931),  No.  62  (p.  931)  ; 
French  Yelloio  Book,  doc.  No.  83  (p.  644)  ;  German  White  Book,  doc. 
No.  18  (p.  807);  Russian  Orange  Book,  No.  1,  doc.  No.  73  (p.  1375). 
French  attitude.    British  Blue  Book,  No.  1,  docs.  No.  42  (p.  913), 


No.  51  (p.  922),  No.  52  (p.  924);  French  Yellow  Book,  docs.  No.  34 
(p.  586),  No.  70  (p.  619),  No.  76  (p.  638),  No.  79  (p.  641),  No.  81 
(p.  643)  ;  Russian  Orange  Book,  No.  1,  docs.  No.  28  (p.  1351),  No.  39 
(p.   1357),  No.  55    (p.   1366). 

.     German    attitude.      British    Blue    Book,    No.    1,    docs.    No.    18 

(p.  891),  No.  25  (p.  896),  No.  46  (p.  916),  No.  84  (p.  946),  No.  94 
(p.  958),  No.  121  (p.  982)  ;  French  Yellow  Book,  docs.  No.  67  (p.  618), 
No.  77  (p.  639);  Oerman  White  Book,  docs.  No.  14  (p.  805),  No.  15 
(p.  806)  ;  Russian  Orange  Book,  No.  1,  docs.  No.  34  (p.  1354),  No.  39 
(p.   1357). 

.     Italian  attitude.    Belgian  Orey  Book,  No.  2,  doc.  No.  6  (p.  426)  ; 

British  Blue  Book,  No.  1,  doc.  No.  78  (p.  941);  French  Yellow  Book, 
docs.  No.  71    (p.  620),  No.  97   (p.  656). 

Russian  attitude.  Belgian  Orey  Book,  No.  2,  doc.  No.  17  (p.  440)  ; 


British  Blue  Book,  No.  1,  doc.  No.  78   (p.  941);  French  Yellow  Book, 

docs.  No.  85   (p.  646),  No.  86   (p.  647);  Russian  Orange  Book,  No.  1, 

doc.   No.   48    (p.    1362). 
British  proposal  for  conference  of  four  Powers  at  London,  and  suspension  of 

military  operations.     British  Blue  Book,  No.  1,  docs.  No.  36   (p.  902), 

No.  42    (p.  913),  No.  67    (p.  934);   French  Yellow  Book,  doc.  No.  68 

(p.  618). 
.     Austrian   attitude.     Austro-Hungarian  Red  Book,   No.    1,  docs. 

No.  38  (p.  99),  No.  41    (p.  103)  ;  British  Blue  Book,  No.  1,  doc.  No.  62 

(p.  931)  ;  German  White  Book,  Mem.  1    (p.  771). 

French  attitude.    British  Blue  Book,  No.  1,  docs.  No.  40  (p.  912), 


No.  42    (p.  913),  No.  51    (p.  922),  No.  52    (p.  924);   French  Yellow 
Book,  doc.  No.  61    (p.  612). 

German  attitude.     Austro-Hungarian  Red  Book,  No.  1,  doc.  No. 


35  (p.  98)  ;  British  Blue  Book,  No.  1,  docs.  No.  43  (p.  914),  No.  67 
(p.  934),  No.  71  (p.  936),  No.  84  (p.  946),  No.  121  (p.  982);  French 
Yelloio  Book,  docs.  No.  73  (p.  622),  No.  74  (p.  622),  No.  78  (p.  640), 
No.  81  (p.  643),  No.  92  (p.  650)  ;  Oerman  White  Book,  Mem.  1  (p.  771), 
doc.  No.  17    (p.  806). 

Italian    attitude   and   suggestions.     British   Blue   Book,   No.    1, 


docs.  No.  35  (p.  902),  No.  49  (p.  920),  No.  57  (p.  929),  No.  64  (p.  933), 
No.  78  (p.  941),  No.  80  (p.  944),  No.  92  {p.  953),  No.  106  (p.  971); 
French  Yelloto  Book,  docs.  No.  71    (p.  620),  No.  84   (p.  645). 

Russian  attitude.  Belgian  Orey  Book,  No.  2,  doc.  No.  17  (p.  440)  ; 


British  Blue  Book,  No.  1,  docs.  No.  40  (p.  912),  No.  53  (p.  925), 
No.  55  (p.  927),  No.  78  (p.  941),  No.  93  (p.  954);  French  Yellow 
Book,  docs.  No.  68  (p.  618),  No.  91  (p.  650);  Russian  Orange  Book, 
No.  1,  doc.  No.  69  (p.  1374). 
British-Russian  proposal  for  submission  to  mediating  Powers  of  Servia'a 
satisfaction  to  Austria  after  occupation  of  Belgrade.    British  Blue  Book, 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      41 

No.  1,  docs.  No.  76  (p.  940),  No.  88  (p.  949),  No.  103  (p.  965), 
No.  104  (p.  966),  No.  Ill  (p.  974),  No.  131  (p.  988),  No.  135 
(pp.  991,  1023)  ;  German  White  Book  (p.  821)  ;  Russian  Orange  Book, 
No.   1,  doc.  No.  71    (p.   1375). 

Austrian  attitude.     Austro-Hungarian  Red  Book,  No.   1,  Intro. 


(p.  3),  doc.  No.  51  (p.  112)  ;  British  Blue  Book,  No.  1,  docs.  No.  131 
(p.  988),  No.  135  (p.  991)  ;  French  Yellow  Book,  docs.  No.  93  (p.  652), 
No.   107    (p.   664),  No.   112    (p.   669). 

German  attitude.  British  Blue  Book,  No.  1,  docs.  No.  98  (p.  961), 


No.  100   (p.  963),  No.  112   (p.  975),  No.  121   (pp.  982,  1023);  German 
White  Book   (p.  821). 

Russian  attitude  and  modifications.     British  Blue  Book,  No.  1, 


docs.  No.  88  (p.  949),  No.  97  (p.  960),  No.  99  (p.  962),  No.  120 
(p.  981),  No.  132  (p.  989),  No.  139  (p.  994);  French  Yellow  Book, 
docs.  No.  103  (p.  660),  No.  113  (p.  670)  ;  Russian  Orange  Book,  No.  1, 
docs.  No.  60  (p.  1369),  No.  64  (p.  1371),  No.  67  (p.  1373). 
Germany  asked  for  formula  of  mediation.  British  Blue  Book,  No.  1,  docs. 
No.  60  (p.  931),  No.  68  (p.  935),  No.  80  (p.  944),  No.  84  (p.  946), 
No.  88  (p.  949),  No.  92  (p.  953),  No.  100  (p.  963),  No.  107  (p.  972), 
No.  Ill  (p.  974);  French  Yelloio  Book,  docs.  No.  74  (p.  622),  No.  81 
(p.  643),  No.  98  (p.  656),  No.  108  (p.  665);  Russian  Orange  Book, 
No.  1,  doc.  No.  54  (p.  1366). 
Powers  agree  to  accept  any  mediation  proposals  made  by  Austria  and 
Germany  which  will  preserve  peace.  British  Blue  Book,  No.  1,  docs. 
No.  78  (p.  941),  No.  84  (p.  946),  No.  Ill  (p.  974);  French  Yellow 
Book,  doc.  No.  86  (p.  647);  Russian  Orange  Book,  No.  1,  doc.  No.  64 
(p.  1371). 
Russian  proposal  for  simultaneous  direct  negotiations  and  discussions  by 
the  four  Powers.  Aiistro-Hungarian  Red  Book,  No.  1,  doc.  No.  56 
(p.  115);  British  Blue  Book,  No.  1,  doc.  No.  133  (p.  989);  French 
Yellow  Book,  doc.  No.  103  (p.  660)  ;  Russian  Orange  Book,  No.  1,  docs. 
No.  49  (p.  1362),  No.  63  (p.  1371). 
Russian  proposal  for  reference  to  The  Hague.     German  White  Book,  doc. 

No.  22  (p.  810). 
Suspension  of  mediation  proposals  pending  direct  negotiations  between 
Austria  and  Russia.  British  Blue  Book,  No.  1,  docs.  No.  53  (p.  925), 
No.  55  (p.  927),  No.  67  (p.  934),  No.  68  (p.  935);  French  Yellow 
Book,  docs.  No.  80  (p.  641),  No.  104  (p.  661)  ;  Russian  Orange  Book, 
No.   1,  docs.  No.  31    (p.   1353),  No.  32    (p.   1353). 

.     Renewal  of  mediation  proposals.    British  Blue  Book,  No.  1,  docs. 

No.  78    (p.  941),  No.  93    (p.  954),  No.  106    (p.  971);  French  Yellow 
Book,  docs.  No.  91    (p.  650),  No.  97    (p.  65'6)  ;  Russian  Orange  Book, 
No.   1,  doc.  No.  50    (p.   1363). 
Note  4. — Advice  given  by  France,  Great  Britain,  and  Russia  to  the  Servian 
Government  so  to  reply  to  Austro-Hungarian  note  as  to  preserve  peace. 

The  French  attitude  is  thus  recorded  by  the  Austro-Hungarian  Ambassador 
in  the  following  telegram  to  France,  dated  Paris,  July  24,  1914,  to  the  Austro- 
Hungarian  Minister   for   Foreign  Affairs: 

"The  Servian  Minister  here  has  been  advised  that  his  Government 
should  yield  on  all  points  as  much  as  possible,  yet  with  the  restriction: 
'  As  long  as  her  rights  of  sovereignty  were  not  touched.' "  ( Austro- 
Hungarian  Red  Book,  No.  1,  doc.  No.  13,  p.  24.) 

For  further  references  to  French  advice  see  British  Blue  Book,  No.  1,  doc. 
No.  16  (p.  889)  ;  French  Yellow  Book,  docs.  No.  26  (p.  578),  No.  34  (p.  586)  ; 
SerUan  Blue  Book,  docs.  No.   10    (p.   1446),  No.  13    (p.   1448). 

The  attitude  of  Great  Britain  is  expressed  in  the  telegram,  dated  Nish, 
July  28,  1914,  from  the  British  Charge  d'Affaires  at  Belgrade  to  the  British 
Secretary  of  State  for  Foreign  Affairs,  as  follows: 

"  I  have  urged  on  the  Servian  Government  the  greatest  moderation 
pending  efforts  being  made  towards  a  peaceful  solution."  (British  Blue 
Book,  No.  1,  doc.  No.  65,  p.  934.) 


42  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

For  further  references  to  British  counsels  of  mock^ration,  see  British  Blue 
Book,  No.  1,  docs.  No.  12    (p.  886),  No.  22    (p.  894),  No.  30    (p.  8!)<J ) . 

The  attitude  of  the  Russian  Government  is  unmistakably  put  in  the  following 
telegram  of  the  Czar,  dated  July   14/27,   1914: 

"  When  your  Royal  Highness  applied  to  me  at  a  time  of  especial  strcaiB, 
you  were  not  mistalcen  in  the  sentiments  which  I  entertain  for  you,  or  in 
my  cordial  sympathy  with  the  Servian  people. 

"  The  existing  situation  is  engaging  ray  most  serious  attention,  and  my 
Government  are  using  their  utmost  endeavour  to  smooth  away  the  present 
diflBculties.  I  have  no  doubt  that  your  Highness  and  the  Royal  Servian 
Government  wish  to  render  that  task  easy  by  neglecting  no  step  which 
might  lead  to  a  settlement,  and  thus  both  prevent  the  horrors  of  a  new 
war  and  safeguard  the  dignity  of  Servia. 

"  So  long  as  the   slightest   hope   exists  of  avoiding  bloodshed,   all   our 

efforts  must  be  directed  to  that  end;   but  if  in  spite  of  our  earnest  wish 

we  are  not  successful,  your  Highness  may  rest  assured  that   Russia  will 

in  no  case  disinterest  herself  in  the  fate  of  Servia."     {Russian  Orange  Book, 

No.   1,  doc.  No.  40,  p.  1357.) 

For  further  statements  of  the  Russian  advice  to  Servia  urging  a  conciliatory 

reply  to  the  Austro-Hungarian  ultimatum,  see  British  Blue  Book,  No.   1,  docs. 

No. '22   (p.  894),  No.  45    (p.  916),  No.  56   (p.  928),  No.  94    (p.  958);  Russian 

Orange  Book,  No.  1,  docs.  No.  42  (p.  1359),  No.  56  (p.  1367),  No.  57   (p.  1368). 

Note  5. — Signor  Giolitti,  formerly  Prime  Minister  of  Italy,  said  in  the  course 
of  debate  in  the  Italian  Chamber  of  Deputies,  on  December  5,  1914:  "Therefore, 
inasmuch  as  I  hold  it  necessary  that  Italy's  loyal  observance  of  international 
treaties  shall  be  considered  as  being  above  any  possibility  of  dispute — (Hear, 
hear) — I  feel  it  my  duty  to  recall  a  precedent,  which  proves  that  the  inter- 
pretation placed  by  the  Government  on  the  Treaty  of  the  Triple  Alliance  is  the 
correct  interpretation,  and  was  admitted  as  correct  in  identical  circumstances 
by  the  Allied  Powers. 

"  During  the  Balkan  War,  on  the  9th  of  August,  1913,  about  a  year  before 
the  present  war  broke  out,  during  my  absence  from  Rome,  I  received  from  my 
hon.  colleague,  Signor  di  San  Guiliano,  the  following  telegram: 

" '  Austria  has  communicated  to  us  and  to  Germany  her  intention  of 
taking  action  against  Serbia,  and  defines  such  action  as  defensive,  hoping 
to  bring  into  operation  the  casus  foederis  of  the  Triple  Alliance,  which, 
on  the  contrary,  I  believe  to  be  inapplicable.     {Sensation.) 

"  '  I  am  endeavoring  to  arrange  for  a  combined  effort  with  Germany  to 
prevent  such  action  on  the  part  of  Austria,  but  it  may  become  necessary 
to  state  clearly  that  we  do  not  consider  such  action,  if  it  should  be  taken, 
as  defensive,  and  that,  therefore,  we  do  not  consider  that  the  casus  foederis 
arises. 

" '  Please  telegraph  me  at  Rome  if  you  approve.' 
"  1  replied: 

"  '  If  Austria  intervenes  against  Serbia  it  is  clear  that  a  casus  foederis 
cannot  be  established.     It  is  a  step  which  she  is  taking  on  her  own  account, 
since  there  is  no  question  of  defence,   inasmuch  as  no  one  is  thinking  of 
attacking  her.     It  is  necessary  that  a  declaration  to  this  effect  should  be 
made  to  Austria  in  the  most  formal  manner,  and  we  must  hope  for  action 
on    the    part   of    Germany    to    dissuade    Austria    from   this   most    perilous 
adventure.'      ( Hear,   hear. ) 
"  This  course  was  taken,  and  our  interpretation  was  upheld  and  recognized 
as  proper,   since  our  action  in  no  way  disturbed  our  relations  with  the  two 
Allied  Powers.     The  declaration  of  neutrality  made  by  the  present  Government 
conforms  therefore  in  all  respects  to  the  precedents  of  Italian  policy,  and  con- 
forms   also   to    an    interpretation    of    the    Treaty   of   Alliance   which   has    been 
already  accepted  by  the  Allies. 

"  I  v,^ish  to  recall  this,  because  I  think  it  right  that  in  the  eyes  of  all 
Europe  it  should  appear  that  Italy  has  remained  completely  loyal  to  the 
observance   of   her   pledges."      {Serbian  Blue  Book,   Appendix,   pp.    1489-1490.) 


CHAPTER   II 
THE   NEUTRALITY   OF   THE   UNITED    STATES 

On  August  4,  1914,  the  President  by  proclamation  declared  the 
United  States  to  be  neutral  in  the  war  between  Austria-Hungary  and 
Servia,  Germany  and  Russia,  Germany  and  France — for  although  Bel- 
gium had  been  invaded  and  its  neutrality  therefore  violated  by  the 
Imperial  German  Government  on  the  morning  of  the  4th  of  August, 
and  although  Great  Britain  had  declared  war  against  the  Imperial 
German  Government  on  the  4th,  the  first  proclamations  of  neutrality 
issued  by  the  United  States  in  the  European  war  were  in  response  to 
formal  declarations  known  to  have  been  made  before  the  5th  day  of 
August.  As  all  subsequent  proclamations  were  similar  if  not  identical, 
it  will  only  be  necessary  to  consider  and  to  analyze  the  first  of  the 
series  issued  because  of  Germany's  declaration  of  war  on  the  first  day 
of  August,  1914,  against  Russia  in  order  to  appreciate  and  to  under- 
stand the  conception  of  neutrality  obtaining  in  the  United  States. 

In  what  may  be  considered  the  preamble  to  this  proclamation, 
President  Wilson  declares  that  "the  laws  and  treaties  of  the  United 
States,  without  interfering  with  the  free  expression  of  opinion  and 
sympathy,  or  with  the  commercial  manufacture  or  sale  of  arms  or 
munitions  of  war,^  nevertheless  impose  upon  all  persons  who  may 
be  within  their  territory  and  jurisdiction  the  duty  of  an  impartial 
neutrality  during  the  existence  of  the  contest";  and  in  the  passage 
immediately  following  he  declares  it  to  be  the  duty  of  a  neutral 
government  "not  to  permit  or  suffer  the  making  of  its  waters  sub- 
servient to  the  purposes  of  war." 

After  these  general  statements  the  President  proceeds  to  state  in 
summary  form  the  laws  and  treaties  and  the  principles  of  inter- 
national law  which  all  persons  residing  within  the  United  States  are 
bound  to  obey  in  order  to  preserve  neutrality. 

The  provisions  of  the  Penal  Code  of  the  United  States  approved 
March  4,  1909,  declaring  certain  acts  to  be  unneutral  and  forbidding 
them  under  severe  penalties,  are  thus  stated  in  the  proclamation: 

'  See  Convention  V,  The  Hague,  1907,  Art.  7 ;  Convention  XIII,  The  Hague, 
1907,  Arts.  6  and  7;  The  Hague  Conventions  and  Declarations,  p.  134. 

43 


44  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

1.  Accepting  and  exercising  a  commission  to  serve  either 
of  the  said  belligerents  by  land  or  by  sea  against  the  other 
belligerent. 

2.  Enlisting  or  entering  into  the  service  of  either  of  the 
said  belligerents  as  a  soldier,  or  as  a  marine,  or  seaman  on  board 
of  any  vessel  of  war,  letter  of  marque,  or  privateer. 

3.  Hiring  or  retaining  another  person  to  enlist  or  enter 
himself  in  the  service  of  either  of  the  said  belligerents  as  a 
soldier,  or  as  a  marine,  or  seaman  on  board  of  any  vessel  of  V7ar, 
letter  of  marque,  or  privateer. 

4.  Hiring  another  person  to  go  beyond  the  limits  or  juris- 
diction of  the  United  States  with  intent  to  be  enlisted  as  aforesaid. 

5.  Hiring  another  person  to  go  beyond  the  limits  of  the 
United  States  with  intent  to  be  entered  into  service  as  aforesaid. 

6.  Retaining  another  person  to  go  beyond  the  limits  of  the 
United  States  with  intent  to  be  enlisted  as  aforesaid. 

7.  Retaining  another  person  to  go  beyond  the  limits  of  the 
United  States  with  intent  to  be  entered  into  service  as  afore- 
said.   .     .     . 

8.  Fitting  out  and  arming,  or  attempting  to  fit  out  and  arm, 
or  procuring  to  be  fitted  out  and  armed,  or  knowingly  being 
concerned  in  the  furnishing,  fitting  out,  or  arming  of  any  ship 
or  vessel  with  intent  that  such  ship  or  vessel  shall  be  employed 
in  the  service  of  either  of  the  said  belligerents. 

9.  Issuing  or  delivering  a  commission  within  the  territory 
or  jurisdiction  of  the  United  States  for  any  ship  or  vessel  to  the 
intent  that  she  may  be  employed  as  aforesaid. 

10.  Increasing  or  augmenting,  or  procuring  to  be  increased 
or  augmented,  or  knowingly  being  concerned  in  increasing  or 
augmenting,  the  force  of  any  ship  of  war,  cruiser,  or  other  armed 
vessel,  which  at  the  time  of  her  arrival  within  the  United  States 
was  a  ship  of  war,  cruiser,  or  armed  vessel  in  the  service  of 
either  of  the  said  belligerents,  or  belonging  to  the  subjects  of 
either,  by  adding  to  the  number  of  guns  of  such  vessels,  or  by 
changing  those  on  board  of  her  for  guns  of  a  larger  calibre,  or 
by  the  addition  thereto  of  any  equipment  solely  applicable  to  war. 

11.  Beginning  or  setting  on  foot  or  providing  or  preparing 
the  means  for  any  military  expedition  or  enterprise  to  be  carried 
on  from  the  territory  or  jurisdiction  of  the  United  States  against 
the  territories  or  dominions  of  either  of  the  said  belligerents.^ 

These  are,  in  concise  form,  the  neutrality  statutes  of  the  United 
States,  which  had  been  found  necessary  in  Washington's  administra- 
tion and  in  that  of  his  immediate  successor  to  preserve  the  neutral 
rights  of  the  United  States  against  violation  by  belligerents,  and  to 
secure  the  observance  of  the  neutral  duties  of  the  United  States  in 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  195;  Statutes  at  Large,  vol.  35,  part  1,  p.  1088. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     45 

behalf  of  belligerents.  Reissued  with  slight  modifications  in  1818 
and  incorporated  in  the  Statutes  at  Large  in  1874,  they  reappear 
as  a  section  of  the  so-called  Penal  Code  of  the  United  States  in  1909 
with  but  trifling  changes  of  phraseology. 

From  these  statutes  and  their  history  the  reader  will  understand 
that  the  United  States,  young  as  it  is,  has  had  practical  experience 
with  neutrality.  It  was  the  first  country  to  feel  the  need  of  a 
code  of  municipal  law  dealing  with  the  question  of  neutrality,  and 
it  was  the  first  country  to  draft  such  a  code.  By  its  conduct  as  a 
neutral  in  the  wars  of  the  French  Revolution  in  Washington's 
administration,  it  laid  the  basis  of  the  modern  law  of  neutrality. 
The  late  Mr.  Hall,  who  cannot  be  classed  as  an  undiscriminating 
friend  of  the  United  States,  as  even  a  casual  examination  of  his 
treatise  on  international  law  will  show,  felt  justified,  or  rather  was 
forced  to  state  in  the  edition  published  a  hundred  years  after  the 
event  that  "the  policy  of  the  United  States  in  1793  constitutes  an 
epoch  in  the  development  of  the  usages  of  neutrality.  There  can  be 
no  doubt  that  it  was  intended  and  believed  to  give  effect  to  the  obliga- 
tions then  incumbent  upon  neutrals.  But  it  represented  by  far  the 
most  advanced  existing  opinions  as  to  what  those  obligations  were; 
and  in  some  points  it  even  went  further  than  authoritative  inter- 
national custom  has  up  to  the  present  time  advanced.  In  the  main 
however  it  is  identical  with  the  standard  of  conduct  which  is  now 
adopted  by  the  community  of  nations. ' '  ^ 

The  neutrality  therefore  which  the  United  States  proclaimed  in 
1914  was  not  a  neutrality  born  of  the  moment.  It  was  the  neutrality 
given  to  the  world  by  Washington  and  his  conscientious  advisers  in 
1793,  with  such  additions  as  subsequent  experience  has  suggested. 
It  was  the  goal  of  neutrality  in  1793,  it  was  the  standard  of  neutrality 
in  1914.  It  was  not  devised  to  favor  one  belligerent  at  the  expense 
of  the  other,  nor  was  it  devised  to  benefit  one  neutral  nation  at  the 
expense  of  another.  It  was  the  neutrality  which  recognized  belliger- 
ent duties  as  well  as  neutral  rights,  and  which,  by  apt  laws,  sought  to 
prevent  assaults  upon  neutral  rights  and  to  compel  the  performance 
of  neutral  duties. 

It  is  important  to  bear  these  things  in  mind  in  considering  the 
relations  between  the  Imperial  German  Government  and  the  United 
States  when  Germany  was  a  belligerent  as  respects  Europe  and  the 
United  States  was  a  neutral  as  respects  Germany,  in  order  that  it 
may  appear  clear  and  beyond  the  possibility  of  successful  contradic- 

'  Hall's  International  Law,  4tli  ed.    (Oxford,  1895),  sec.  213,  p.  616. 


46  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

tion  that  the  neutral  conduct  of  the  United  States  was  the  conduct 
which  the  United  States  had  itself  prescribed  more  than  a  century 
before  this  war,  which  it  had  followed  during  a  century  and  more 
after  its  promulgation,  and  which  had  become  the  accepted  standard 
of  neutrality  in  the  world  at  large. 

In  the  balance  of  the  proclamation  the  President  called  attention  to 
certain  provisions  of  International  Law  sanctioned  by  the  practice  of 
nations  in  order  to  render  neutrality  effective.  Thus  he  declared 
(1)  the  presence  of  armed  vessels  of  belligerents  within  the  terri- 
torial jurisdiction  of  the  United  States  for  purposes  of  hostile  opera- 
tions or  as  posts  of  observation,  or  to  note  the  entry  and  departure  of 
merchant  vessels  of  a  belligerent,  as  **  unfriendly  and  offensive,  and  in 
violation  of  that  neutrality  which  it  is  the  determination  of  this  govern- 
ment to  observe."  ^  (2)  He  warned  the  belligerents  that  their  vessels 
of  war  should  not  make  use  of  any  port,  harbor,  roadstead,  or  waters 
subject  to  the  jurisdiction  of  the  United  States  from  which  a  vessel  of 
its  enemy  had  departed  until  twenty-four  hours  after  the  departure  of 
such  vessel  beyond  American  jurisdiction;  (3)  that  any  belligerent 
warship  within  or  entering  American  jurisdiction  should  leave  within 
twenty-four  hours  after  entrance,  except  in  case  of  stress  of  weather 
or  need  of  provisions,  supplies,  and  repairs;  -  (4)  that  in  these  excep- 
tional cases  the  belligerent  vessel  should  put  to  sea  as  soon  as  possible 
after  the  twenty-four  hours  and  that  the  vessel  should  not  be  per- 
mitted to  take  on  supplies  beyond  those  required  for  immediate 
use;  (5)  that  a  war  vessel  permitted  to  remain  in  American  juris- 
diction to  make  repairs  should  depart  within  twenty-four  hours  after 
the  completion  of  such  repairs  unless  vessels  of  an  opposing  belligerent 
had  sailed  from  the  same  port  within  that  period,  in  which  case 
the  war  vessel  would  be  detained  in  order  that  it  might  leave  twenty- 
four  hours  after  the  departure  of  the  other  vessel;^'  (6)  that  no 
belligerent  war  vessel  within  American  jurisdiction  should  take  on 
supplies  other  than  provisions,  except  such  as  were  necessary  for 
the  subsistence  of  the  crew,  and  no  more  coal  than  that  required  to 
carry  the  vessel  to  the  nearest  port  of  its  own  country;  and  (7)  that, 
without  special  permission,  a  vessel  once  supplied  with  coal  should 
not  receive  a  further  amount  within  three  months  from  the  date 
thereof  within  the  jurisdiction  of  the  United  States,  unless  the  vessel 
had  in  the  meantime  entered  a  port  of  the  home  country.    The  Presi- 

^  The  Hague  Convention  of  1907  Concerning  the  Rights  and  Duties  of  Neutral 
Powers  in  Naval  Warfare,  Art.  16;  The  Hague  Conventions  and  Declarations  of 
1899  and  1907,  pp.  213-214. 

'Ihid.,  Art.   14.  'Ibid.,  Art.   19. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     47 

dent  further  declared  in  his  proclamation  (8)  that  the  statutes  and 
treaties  of  the  United  States  and  the  law  of  nations  required  that 
no  persons  within  the  jurisdiction  of  the  United  States  should  directly 
or  indirectly  take  part  in  the  war,  but  that  they  should  remain  at 
peace  with  all  of  the  belligerents  and  maintain  strict  and  impartial 
neutrality;  (9)  and  he  enjoined  the  citizens  of  the  United  States  and 
all  persons  within  the  jurisdiction  thereof  to  observe  the  laws,  to 
commit  no  acts  contrary  to  the  provisions  of  the  statutes  or  treaties  or 
in  violation  of  the  law  of  nations.  He  also  warned  citizen  and  for- 
eigner alike  that  (10)  while  a  full  and  free  expression  of  sympathy, 
in  public  and  private,  with  the  belligerents  was  not  forbidden  by 
the  laws  of  the  United  States,  military  forces  in  aid  of  a  belligerent 
could  not  lawfully  be  set  on  foot  and  organized  within  the  United 
States;  (11)  that  all  persons  residing  within  the  United  States  might 
lawfully  manufacture  and  sell  within  the  United  States  "arms  and 
munitions  of  war,  and  other  articles  ordinarily  known  as  'contraband 
of  war,'  "  but  that  (12)  they  cannot  carry  such  articles  upon  the 
high  seas  for  the  use  or  service  of  a  belligerent;  (13)  that  the  trans- 
portation of  soldiers  and  officers  of  a  belligerent  upon  the  high  seas 
is  forbidden;  (14)  that  the  attempt  to  break  any  blockade  which 
might  be  lawfully  established  and  maintained  during  the  war 
was  subject  to  the  risk  of  capture  and  confiscation  by  the  law  of 
nations;  (15)  and  the  proclamation  closed  with  the  statement  that 
citizens  of  the  United  States  and  others  claiming  its  protection  dis- 
obeyed the  statutes  and  treaties  of  the  United  States  and  the  law 
of  nations  at  their  peril,  and  that  they  could  not  expect  the  protec- 
tion of  the  Government  of  the  United  States  against  the  consequences 
of  their  misconduct. 

It  should  be  said,  however,  in  this  connection,  that  President 
Wilson  was  not  satisfied  with  this  formal  expression  of  neutrality  on 
behalf  of  the  United  States,  which  would  have  more  than  complied 
with  international  law  and  practice,  as  thus  stated  by  the  Kriegs- 
brauch  im  Landkriege: 

It  is  here  assumed  that  neutrality  is  not  to  be  regarded  as 
synonymous  with  indifference  and  impartiality  with  regard  to 
the  belligerent  parties  and  the  continuance  of  the  war.  As  to 
the  expression  ''partisanship,"  neutral  States  can  only  be 
expected  to  observe  international  courtesies;  as  long  as  these  are 
observed,  there  is  no  reason  to  interfere.' 

President  Wilson  not  only  wished  to  avoid  participation  in  the  war 

^  Kriegshrauch  im  Landkriege    (Berlin,  1902),  p.  69. 


48  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

and  to  prevent  the  commission  of  any  unneutral  act  in  the  United 
States  or  by  the  United  States,  but  also  to  have  his  countrymen 
refrain  from  the  expression  of  unneutral  thought  or  of  unneutral 
opinion.  America  was  to  be  neutral  in  thought  as  well  as  in  deed. 
Thus,  on  the  19th  of  August,  1914,  President  Wilson  made  an  appeal 
to  his  fellow  countrymen,  couched  in  the  following  language : 

I  suppose  that  every  thoughtful  man  in  America  has  asked 
himself,  during  these  last  troubled  weeks,  what  influence  the 
European  War  may  exert  upon  the  United  States,  and  I  take 
the  liberty  of  addressing  a  few  words  to  you  in  order  to  point 
out  that  it  is  entirely  within  our  own  choice  what  its  effects 
upon  us  will  be  and  to  urge  very  earnestly  upon  you  the  sort  of 
speech  and  conduct  which  will  best  safeguard  the  Nation  against 
distress  and  disaster. 

The  effect  of  the  war  upon  the  United  States  will  depend 
upon  what  American  citizens  say  and  do.  Every  man  who  really 
loves  America  will  act  and  speak  in  the  true  spirit  of  neutrality, 
which  is  the  spirit  of  impartiality  and  fairness  and  friendliness 
to  all  concerned.  The  spirit  of  the  Nation  in  this  critical  matter 
will  be  determined  largely  by  what  individuals  and  society  and 
those  gathered  in  public  meetings  do  and  say,  upon  what  news- 
papers and  magazines  contain,  upon  what  ministers  utter  in  their 
pulpits,  and  men  proclaim  as  their  opinions  on  the  street. 

The  people  of  the  United  States  are  drawn  from  many 
nations,  and  chiefly  from  the  nations  now  at  war.  It  is  natural 
and  inevitable  that  there  should  be  the  utmost  variety  of  sym- 
pathy and  desire  among  them  with  regard  to  the  issues  and 
circumstances  of  the  conflict.  Some  will  wish  one  nation,  others 
another,  to  succeed  in  the  momentous  struggle.  It  will  be  easy 
to  excite  passion  and  difficult  to  allay  it.  Those  responsible  for 
exciting  it  will  assume  a  heavy  responsibility,  responsibility  for 
no  less  a  thing  than  that  the  people  of  the  United  States,  whose 
love  of  their  country  and  whose  loyalty  to  its  Government  should 
unite  them  as  Americans  all,  bound  in  honor  and  affection  to 
think  first  of  her  and  her  interests,  may  be  divided  in  camps  of 
hostile  opinion,  hot  against  each  other,  involved  in  the  war  itself 
in  impulse  and  opinion  if  not  in  action. 

Such  divisions  among  us  would  be  fatal  to  our  peace  of  mind 
and  might  seriously  stand  in  the  way  of  the  proper  performance 
of  our  duty  as  the  one  great  nation  at  peace,  the  one  people 
holding  itself  ready  to  play  a  part  of  impartial  mediation  and 
speak  the  counsels  of  peace  and  accommodation,  not  as  a  partisan, 
but  as  a  friend. 

I  venture,  therefore,  my  fellow  countrymen,  to  speak  a  solemn 
word  of  warning  to  you  against  that  deepest,  most  subtle,  most 
essential  breach  of  neutrality  which  may  spring  out  of  partisan- 
ship, out  of  passionately  taking  sides.     The  United  States  must 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     49 

be  neutral  in  fact  as  well  as  in  name  during  these  days  that  are 
to  try  men's  souls.  We  must  be  impartial  in  thought  as  well 
as  in  action,  must  put  a  curb  upon  our  sentiments  as  well  as 
upon  every  transaction  that  might  be  construed  as  a  preference 
of  one  party  to  the  struggle  before  another. 

My  thought  is  of  America.  I  am  speaking,  I  feel  sure,  the 
earnest  wish  and  purpose  of  every  thoughtful  American  that 
this  great  country  of  ours,  which  is,  of  course,  the  first  in  our 
thoughts  and  in  our  hearts,  should  show  herself  in  this  time  of 
peculiar  trial  a  Nation  fit  beyond  others  to  exhibit  the  fine  poise 
of  undisturbed  judgment,  the  dignity  of  self-control,  the  effi- 
ciency of  dispassionate  action ;  a  Nation  that  neither  sits  in  judg- 
ment upon  others  nor  is  disturbed  in  her  own  counsels  and  which 
keeps  herself  fit  and  free  to  do  what  is  honest  and  disinterested 
and  truly  serviceable  for  the  peace  of  the  world. 

Shall  we  not  resolve  to  put  upon  ourselves  the  restraints 
which  will  bring  to  our  people  the  happiness  and  the  great  and 
lasting  influence  for  peace  we  covet  for  them  ?  ^ 

It  is  the  experience  of  a  neutral  Government  that  questions  taxing 
its  neutrality  almost  to  the  breaking  point  arise  in  the  early  part 
of  the  contest;  that  neutral  Nations  take  their  positions  shortly  after 
the  outbreak  of  the  war  if  they  have  not  been  able  to  do  so  upon 
its  declaration ;  that  belligerents,  claiming  rights  which  to  them  may 
seem  essential  or  convenient  in  the  beginning  of  the  conflict,  either 
conform  their  actions  to  the  protests  of  the  neutrals  or,  weighing 
these  protests  in  the  balance  and  testing  them  by  their  sense  of 
convenience,  make  up  their  minds  to  risk  the  consequences,  ta 
continue  the  conduct  which  has  been  the  source  of  criticism,  and 
to  formulate  a  policy  over  protest  which  they  are  pleased  to  consider- 
essential  to  their  success.  The  neutral  is  obliged  to  consider  very 
carefully  the  questions  when  and  as  they  arise.  It  cannot  delay, 
because  if  a  violation  of  neutrality  is  permitted,  liability  attaches 
and  the  enemy  of  the  belligerent  is  sure  to  make  its  rights  known 
and  to  impress  neutrals  with  their  duties.  If  an  act  committed  by 
the  belligerent  is  not  in  itself  a  violation  of  neutrality,  it  may  never- 
theless be  fraught  with  disagreeable  consequences,  it  may  be  pre- 
liminary to  unneutral  conduct,  and  the  neutral  is  therefore  obliged 
to  take  action  to  prevent  such  contingencies.  It  must  be  just  as 
between  the  belligerents.  It  must  be  prompt.  It  must  be  firm.  If  it 
yields,  it  opens  the  door  to  opportunity ;  if  it  is  feeble,  it  is  drawn 
into  the  war. 

The  situation,  therefore,  of  the  neutral,  especially  at  the  outbreak 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement^ 
July,  1915,  pp.  199-200. 


50  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  a  war,  is  one  of  embarrassment  for  the  present  and  anxiety  for 
the  future.  It  is  ordinarily  unprepared,  and  it  cannot  well  foresee 
the  conduct  of  the  belligerent  laboring  under  excitement,  perhaps 
smarting  under  defeat.  The  problems  which  present  themselves 
either  seem  to  be  or  they  are  new.  In  any  event,  they  are  unfamiliar. 
In  the  course  of  a  few  months,  however,  the  questions  that  arise 
begin  to  look  familiar,  and  within  a  twelvemonth  repetition  takes 
the  place  of  novelty. 

By  way  of  further  introduction  it  should  be  stated  that  many  of 
Germany's  complaints  of  discrimination  between  the  treatment  it 
received  and  that  meted  out  to  Great  Britain  arose  in  large  part  from 
natural  geographical  conditions  which  were  recognized  as  existing  long 
before  the  present  unfortunate  war,  and  some  illustrations  of  them 
may  be  cited  from  the  proceedings  of  the  Second  Hague  Peace  Con- 
ference, when  apparently  none  of  the  delegates  expected  war. 

Take,  for  example,  the  subject  of  mines.  It  was  strenuously  main- 
tained by  Great  Britain,  upon  humanitarian  grounds,  that  the  laying 
of  mines  should  be  forbidden.  It  was  insisted  on  the  contrary  by 
Germany  that  mines  were  appropriate  weapons.  It  was  generally 
felt  that  mines  were  a  defense  for  countries  without  large  navies, 
and  as  Great  Britain  had  a  large  navy  it  was  intimated  that  self- 
interest  rather  than  humanitarian  reasons  prompted  it  to  object  to 
the  use  of  mines  by  Nations  with  smaller  navies. 

Again,  the  question  of  the  destruction  of  neutral  prizes  was 
bitterly  contested.  Great  Britain  insisted  that  neutral  prizes  should 
not  be  destroyed,  that  they  should  be  released  if  they  could  not  be 
brought  into  a  home  port  for  adjudication.  It  was  felt  that  Great 
Britain,  with  colonies  scattered  throughout  the  world,  could  easily 
take  neutral  prizes  into  port,  whereas  countries  without  colonies  could 
not  conveniently  do  so,  and  that  therefore  the  destruction  of  such 
prizes  was  permissible.  It  was  impossible  to  reach  an  agreement  upon 
this  subject,  permitting  destruction,  although  the  Powers  assembled 
at  the  Naval  Conference  of  London  in  1909  were  able  to  compromise 
their  differences  of  opinion.  Perhaps  this  subject  is  best  treated  by 
the  distinguished  Russian  publicist,  the  late  M.  de  Martens,  who  says 
in  his  work  on  international  law  that  the  geographical  situation  of 
Russia  made  it  necessary  to  destroy  neutral  prizes,  but  admitted  that 
this  measure  would  "undoubtedly  cause  a  universal  criticism  of  his 
country." ' 

Then  further.  Great  Britain  insisted  that  the  captor  should  not  be 

'  Martens,  TraiU  de  droit  international,  1887 ;  tome  iii,  p.  295. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     51 

allowed  to  take  his  prize  into  a  neutral  country,  whereas  the  States 
without  colonial  possessions  stood  for  the  right  to  do  so,  and  felt  that 
the  attitude  of  Great  Britain  was  due  solely  to  its  geographical  situa- 
tion and  that  its  protests  were  dictated  by  self-interest. 

And  finally,  there  was  much  difference  of  opinion  concerning 
the  supplies  of  coal  to  be  furnished  in  neutral  ports  to  belligerent 
vessels  of  war,  Great  Britain  maintaining  that  coal  up  to  the  peace 
standard  might  indeed  be  allowed  once  in  three  months,  but  only  in 
sufficient  quantity  to  take  the  vessel  to  its  nearest  home  port.  The 
countries  without  the  vast  territorial  possessions  of  Great  Britain 
felt  that  such  a  position  would  inure  to  the  advantage  of  Great 
Britain,  and  that  a  belligerent,  such  as  Russia  in  its  war  with  Japan, 
might  properly  have  its  ships  coaled  in  different  ports  on  the  way  to 
the  scene  of  conflict  without  violating  neutrality. 

These  views  were  oftener  felt  than  expressed,  or  were  discussed 
privately  by  the  delegates,  as  public  expression  would  seem  to  impugn 
the  good  faith  of  Nations.  It  is  apparent,  without  argument  and 
without  impugning  the  good  faith  of  any  country,  that  its  views 
would  be  colored  by  its  material  interests.  It  is,  however,  too  much 
to  ask  that  neutral  Nations  should  take  note  of  these  differences  of 
condition  and  modify  their  laws  and  practices  in  such  a  way  as  to 
overcome  them.  They  are  either  natural  advantages,  or  they  are  the 
result  of  fortunate  development,  and  what  can  reasonably  be  asked 
of  a  neutral  Nation  is  that  it  forbid  the  commission  of  acts  which 
are  unneutral  in  themselves,  whether  their  application  may  work  or 
seem  to  work  a  hardship  in  a  particular  case.  Otherwise  there  would 
be  no  general  or  universal  standard  of  conduct,  for  the  neutral  would 
be  obliged  to  weigh  special  conditions,  and  treat  the  belligerents 
differently,  so  as  to  overcome  these  differences.  The  result  of  this 
would  be  that  the  neutral  would  subject  itself  to  unlimited  criticism, 
and  would  in  the  long  run  satisfy  no  country,  not  even  itself. 
The  United  States,  for  example,  might  hold  one  view  as  to  the  pro- 
prieties of  the  case;  another  neutral  might  have  a  different  view, 
and  so  on,  with  the  result  that  there  would  be  inextricable  confusion 
instead  of  a  general  law  or  standard  of  conduct  to  be  known  in 
advance.    It  is  a  familiar  axiom  that  law  is  no  respecter  of  persons. 

We  do  not  need  to  consider  for  present  purposes  the  relations 
of  the  United  States  with  the  other  belligerents,  and  particularly 
with  Germany's  enemies,  because  a  Nation  protests  the  violation  of 
its  rights  to  the  Nation  charged  with  their  violation.  Other  Nations 
are  either  not  familiar  or  are  pleased  not  to  be  familiar  with  these 


52  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

matters,  and  a  Nation  against  which  a  protest  has  been  lodged 
refuses  to  allow  the  Nation  making  this  protest  to  inquire  into  its 
conduct  with  other  Nations,  and  by  so  doing  to  pose  as  censor  morum. 
In  law  the  transaction  with  another  country  is  considered  to  be 
res  inter  alios  acta,  or,  to  take  the  illustration  from  the  broad  domain 
of  arbitration,  Nations  specifically  reserve  from  the  special  agree- 
ment to  arbitrate  all  questions  affecting  the  interests  of  third  parties. 
In  the  course  of  the  present  war  this  principle  was  insisted  upon 
by  the  United  States  and  called  to  the  attention  of  the  Imperial 
German  Government  and  Great  Britain  in  appropriate  cases.  Thus, 
in  a  telegram  dated  April  12,  1915,  the  American  Ambassador  to 
London  was  instructed  to  **say  to  [the]  British  Government,  in 
replying  to  its  statement  regarding  release  [of  the]  steamer  Wico, 
that  this  Government  considers  that  any  seizure  of  American  cargoes 
which  might  be  made  by  the  German  authorities  would  be  a  matter 
which  should  be  adjusted  between  the  Government  of  the  United 
States  and  the  German  Government,  and  further  say  that  the  Gov- 
ernment of  the  United  States  does  not  perceive  that  any  such  action 
on  the  part  of  the  German  authorities  could  afford  justification  for 
seizures  of  American  cargoes  by  the  British  authorities. ' '  ^  Within 
a  fortnight  of  this  date — to  be  accurate,  on  April  21,  1915 — the 
United  States  had  occasion  to  call  this  familiar  principle  to  the  atten- 
tion of  the  Imperial  German  Ambassador  to  the  United  States.  Thus, 
Mr.  Bryan,  Secretary  of  State,  said  in  a  note  to  the  German 
Ambassador : 

I  shall  take  the  liberty,  therefore,  of  regarding  Your  Excel- 
lency's references  to  the  course  pursued  by  the  Government  of 
the  United  States  with  regard  to  interferences  with  trade  from 
this  country,  such  as  the  Government  of  Great  Britain  have 
attempted,  as  intended  merely  to  illustrate  more  fully  the  situ- 
ation to  which  you  desire  to  call  our  attention  and  not  as  an 
invitation  to  discuss  that  course.  Your  Excellency's  long  experi- 
ence in  international  affairs  will  have  suggested  to  you  that  the 
relations  of  the  two  Governments  with  one  another  cannot  wisely 
be  made  a  subject  of  discussion  with  a  third  Government,  which 
cannot  be  fully  informed  as  to  the  facts  and  which  cannot  be 
fully  cognizant  of  the  reasons  for  the  course  pursued.* 

And  it  may  be  of  interest  to  note  in  passing  that  when  the  United 
States  referred  to  the  conduct  of  Great  Britain  as  inconsistent  with 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.  346-347. 
^  Hid.,  p.  127. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     53 

the  Declaration  of  Paris,  of  which  Great  Britain  is  a  signatory, 
that  Government  replied  in  kind,  saying,  in  a  formal  memorandum, 
that  it  was  not  necessary  "to  discuss  the  extent  to  which  the  second 
rule  of  the  Declaration  of  Paris  is  affected  by  these  measures,  or 
whether  it  could  be  held  to  apply  at  all  as  between  Great  Britain 
and  the  United  States"  because  the  United  States  was  not  and  is 
not  now  a  party  to  the  Declaration  of  Paris.' 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  161. 


CHAPTER  III 
GERMAN  CHARGES  OF  UNNEUTRAL  CONDUCT 

"We  can  therefore  consider  the  relations  between  the  Imperial 
German  Government  and  the  United  States,  as  the  Nations  them- 
selves considered  them,  as  an  interesting  and  important  chapter,  with 
references  betimes  to  the  actions  of  others,  but  then  solely  by  way 
of  illustration. 

We  do  not  need  to  search  the  archives  of  the  Department  of  State 
and  to  foot  up  the  incidents  or  charges  of  unneutral  conduct  in  the 
relations  of  the  Imperial  German  Government  and  the  United  States, 
with  which  this  chapter  primarily  deals,  because  Senator  William  J. 
Stone,  Chairman  of  the  Committee  on  Foreign  Relations  of  the 
United  States  Senate,  in  the  following  letter  to  the  Secretary  of  State, 
dated  January  8,  1915,  grouped  and  stated  the  grievances  of  the 
Imperial  German  Government  and  of  its  sympathizers  into  twenty 
categories : 

Dear  Mr.  Secretary:  As  you  are  aware,  frequent  complaints  or 
charges  are  made  in  one  form  or  another  through  the  press  that  this 
Government  has  shown  partiality  to  Great  Britain,  France,  and 
Russia  as  against  Germany  and  Austria  during  the  present  war 
between  those  Powers;  in  addition  to  which  I  have  received  numer- 
ous letters  to  the  same  effect  from  sympathizers  with  Germany  and 
Austria.  The  various  grounds  of  these  complaints  may  be  summar- 
ized and  stated  in  the  following  form: 

1.  Freedom  of  communication  by  submarine  cables,  but  cen- 

sorship of  wireless  messages. 

2.  Submission  to  censorship  of  mails  and  in  some  cases  to  the 

repeated  destruction  of  American  letters  found  on  neutral 
vessels. 

3.  The  search  of  American  vessels  for  German  and  Austrian 

subjects — 

(a)    On  the  high  seas. 

(h)    In  territorial  waters  of  a  belligerent. 

4.  Submission  without  protest  to  English  violations  of  the  rules 

regarding  absolute  and  conditional  contraband,  as  laid 
down — 

54 


A  SURVEY  OF  INTERNATIONAL  RELATIONS  55 

(a)    In  The  Hague  Conventions. 

(6)    In  international  law. 

(c)    In  the   Declaration   of  London. 

5.  Submission  without  protest  to  inclusion  of  copper  in  the  list 

of  absolute  contraband. 

6.  Submission  without  protest  to  interference  with  American 

trade  to  neutral  countries — 

(a)    In  conditional   contraband. 
(&)    In  absolute  contraband. 

7.  Submission  without  protest  to  interruption  of  trade  in  con- 

ditional contraband  consigned  to  private  persons  in  Ger- 
many and  Austria,  thereby  supporting  the  policy  of 
Great  Britain  to  cut  off  all  supplies  from  Germany  and 
Austria. 

8.  Submission  to  British  interruption  of  trade  in  petroleum, 

rubber,  leather,  wool,  etc. 

9.  No  interference  with  the  sale  to  Great  Britain  and  her  Allies 

of  arms,  ammunition,  horses,  uniforms,  and  other  muni- 
tions of  war,  although  such  sales  prolong  the  war. 

10.  No  suppression  of  sale  of  dumdum  bullets  to  Great  Britain. 

11.  British  warships  are  permitted  to  lie  off  American  ports  and 

intercept  neutral  vessels. 

12.  Submission  without  protest  to  disregard  by  Great  Britain 

and  her  allies  of — 

(a)    American  naturalization  certificates. 
(&)    American  passports. 

13.  Change  of  policy  in  regard  to  loans  to  belligerents — 

(a)    General  loans. 
(&)    Credit  loans. 

14.  Submission  to  arrest  of  native-born  Americans  on  neutral 

vessels  and  in  British  ports  and  their  imprisonment. 

15.  Indifference  to  confinement  of  noncombatants  in  detention 

camps  in  England  and  France. 

16.  Failure  to  prevent  transshipment  of  British  troops  and  war 

material  across  the  territory  of  the  United  States. 

17.  Treatment  and  final  internment  of  German  steamship  Geier 

and  the  collier  Locksun  at  Honolulu. 

18.  Unfairness  to  Germany  in  rules  relative  to  coaling  of  war- 

ships in  Panama  Canal  Zone. 

19.  Failure  to  protest  against  the  modifications  of  the  declara- 

tion of  London  by  the  British  Government. 

20.  General  unfriendly  attitude  of  Government  toward  Germany 

and  Austria. 

If  you  deem  it  not  incompatible  with  the  public  interest  I  would 
be  obliged  if  you  would  furnish  me  with  whatever  information  your 
department  may  have  touching  these  various  points  of  complaint, 
or  request  the  counselor  of  the  State  Department  to  send  me  the 
information,  with  any  suggestions  you  or  he  may  deem  advisable  to 


56  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

make  with  respect  to  either  the  legal  or  political  aspects  of  the  sub- 
ject. So  far  as  informed  I  see  no  reason  why  all  the  matter  I  am 
requesting  to  be  furnished  should  not  be  made  public,  to  the  end  that 
the  true  situation  may  be  known  and  misapprehensions  quieted/ 

To  this  letter,  Mr.  Bryan,  then  Secretary  of  State,  sent  a  com- 
prehensive, full,  and  detailed  reply  under  date  of  January  24,  1917, 
which  will  be  considered  in  connection  with  the  discussion  of  the 
complaints  contained  in  Senator  Stone's  letter. 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  253-255;  Senate  doc.  716,  63d  Cong.,  3d  sess. 


CHAPTER   IV 

CENSORSHIP   OF    COMMUNICATIONS 

Section  1.    Cable  and  Wireless 

The  first  point  made  by  Senator  Stone  concerns  the  freedom  of 
communication  by  submarine  cables  versus  censored  communication 
by  wireless.  In  the  matter  of  cables,  the  United  States  decided  that  no 
messages  should  be  sent  in  cipher  and  that  plain  messages  should  be 
submitted  to  the  censorship  of  the  authorities  in  order  to  see  whether, 
in  their  opinion,  the  message  was  or  was  not  unneutral.  In  the  case 
of  wireless  telegraphy  the  station  at  Tuckerton,  N.  J.,  under  German 
ownership,  was  closed,  the  station  at  Sayville  was  taken  in  charge 
by  the  Navy  and  only  messages  were  transmitted  which  the  censor 
approved.  This  regulation,  fair  in  itself  and  applied  to  all  the 
belligerents,  bore  more  heavily  upon  Germany  than  it  did  upon  its 
enemies,  because  Great  Britain  had  cables  of  its  own  from  Canada 
and  did  not  need  to  rely  upon  the  United  States,  whereas  Germany 
had  no  direct  cable  to  the  United  States,  and,  after  the  cable  was 
cut  between  the  Canary  Islands,  had  no  indirect  communication. 
Recognizing,  however,  that  a  diplomat  accredited  to  the  United  States 
should  have  the  right  of  rapid  communication  with  his  Government, 
the  Imperial  German  Embassy  was  allowed  to  use  freely  and  for  official 
purposes  the  station  at  Sayville.  Absolute  neutrality  was  maintained 
by  reason  of  the  fact  that  all  cables  were  uncensored,  whereas  all 
wireless  news  was  censored ;  that  is  to  say,  there  was  no  discrimination 
made  in  favor  of  messages  sent  by  cable  by  any  of  the  belligerents, 
nor  was  there  any  allegation  that  one  country  was  treated  differently 
from  the  other  in  the  matter  of  news  by  wireless.  Nor  was  there  any 
objection  apparently  made  because  communications  by  cable  were 
treated  in  one  way,  and  communications  by  wireless  in  another  way. 
The  alleged  discrimination  existed  in  the  fact  that  Great  Britain  pre- 
ferred the  use  of  the  cable  which  was  open  to  it,  whereas  Germany  had 
to  rely  upon  the  wireless.  Cable  communications  with  Germany 
were  severed,  a  proper  belligerent  act  under  international  law,  so 

57 


58  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

that  Germany  could  not  use  the  cable  for  the  transmission  of  news.* 
This  was  no  doubt  a  serious  interruption  to  the  transmission  of 
German  news,  because  by  the  cable,  to  the  use  of  which  Germany 
was  not  admitted,  Great  Britain  transmitted  news  uncensored, 
whereas  the  only  source  of  communication  open  to  Germany  was 
by  wireless,  which,  however,  was  subject  to  censorship.  This  was  a 
misfortune  for  which  the  United  States  was  in  no  wise  to  blame. 
It  has  the  right  to  censor  communications  by  wireless;  it  has  exer- 
cised this  right;  and  all  Nations  using  wireless  are  treated  alike. 
If  it  were  alleged  that  British  communications  by  wireless  were 
uncensored,  while  those  transmitted  by  Germany  were  censored, 
there  would  then  be  a  direct  and  positive  discrimination.  If  it  be 
said  that  the  same  result  is  reached,  in  fact  though  not  in  theory, 
because  Great  Britain  could  use  the  uncensored  medium  of  communi- 
cation, whereas  Germany  could  not,  and  was  therefore  forced  to  use 
the  censored  means  of  communication,  the  discrimination  does  not 
exist. 

The  action  of  the  United  States  in  these  matters  was  in  con- 
formity with  the  Convention  respecting  the  rights  and  duties  of 
neutral  Powers  and  persons  in  case  of  war  on  land,  signed  at 
The  Hague  October  18,  1907,  which  was  ratified  by  Germany  and 
the  United  States  on  November  27,  1909.^  The  provisions  in  ques- 
tion were: 

Belligerents  are  likewise  forbidden  to — 

(a)  Erect  on  the  territory  of  a  neutral  Power  a  wireless 
telegraphy  station  or  other  apparatus  for  the  purpose  of  com- 
municating with  belligerent  forces  on  land  or  sea; 

(b)  Use  any  installation  of  this  kind  established  by  them 
before  the  war  on  the  territory  of  a  neutral  Power  for  purely 
military  purposes,  and  which  has  not  been  opened  for  the  service 
of  public  messages.     (Art.  3.)* 

According  to  Article  8  of  this  Convention: 

A  neutral  Power  is  not  called  upon  to  forbid  or  restrict  the 
use  on  behalf  of  the  belligerents  of  telegraph  or  telephone  cables 

1  It  is  to  be  observed  that  Germany  has  cut  cables  running  to  British  pos- 
sessions, so  that  the  right  claimed  by  Great  Britain  has  been  exercised  by 
Germany.      (Senate  doc.  716,  63d  Cong.,  3d  sess.,  p.   1.) 

2  The  question  may  be  overlooked  whether  this  Convention  is  ratified  by  all 
the  belligerents  to  the  present  war,  because  the  United  States  was  not  acting 
as  a  belligerent,  but  as  a  neutral,  and  properly  regarded  the  terms  of  the  Con- 
vention as  binding  upon  it,  as  they  are  meant  to  apply  and  do  only  apply  to 
a  neutral  country.  {The  Hague  Conventions  and  Declarations  of  1899  and 
1907,   p.    139.) 

'Hid.,  pp.   133-134. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     59 

or  of  wireless  telegraphy  apparatus  belonging  to  it  or  to  com- 
panies or  private  individuals.^ 

But  if  a  neutral  Power  should  consider  it  expedient  to  forbid  or  to 
restrict  the  belligerent  use  of  the  telegraph  or  of  the  telephone  or  of 
wireless  telegraph,  Article  9  provided  that  every  measure  of  restric- 
tion or  of  prohibition  should  "be  impartially  applied  by  it  to  both 
belligerents. ' ' 

Mr.  Bryan's  letter  contains,  however,  the  following  additional 
justification  of  the  attitude  assumed  and  maintained  by  the  United 
States. 

A  more  important  reason,  however,  at  least  from  the  point 
of  view  of  a  neutral  Government,  is  that  messages  sent  cut  from 
a  wireless  station  in  neutral  territory  may  be  received  by 
belligerent  warships  on  the  high  seas.  If  these  messages,  whether 
plain  or  in  cipher,  direct  the  movements  of  warships  or  convey 
to  them  information  as  to  the  location  of  an  enemy's  public  or 
private  vessels,  the  neutral  territory  becomes  a  base  of  naval 
operations,  to  permit  which  would  be  essentially  unneutral. 

As  a  wireless  message  can  be  received  by  all  stations  and 
vessels  within  a  given  radius,  every  message  in  cipher,  whatever 
its  intended  destination,  must  be  censored;  otherwise  military 
information  may  be  sent  to  warships  off  the  coast  of  a  neutral. 
It  is  manifest  that  a  submarine  cable  is  incapable  of  becoming 
a  means  of  direct  communication  with  a  warship  on  the  high 
seas.  Hence  its  use  cannot,  as  a  rule,  make  neutral  territory 
a  base  for  the  direction  of  naval  operations.^ 


Section  2.   Mail 

At  the  time  of  Senator  Stone's  letter  to  the  Department  of  State, 
the  question  of  the  censorship  of  mails  upon  the  high  seas  did  not 
seem  to  have  arisen,  and  the  discussion  of  the  subject  at  that  time 
was  academic  rather  than  concrete.  The  Secretary  of  State  said, 
however,  that  both  Germany  and  Great  Britain  had  censored  private 
letters  falling  into  their  hands,  that  this  practice  was  justified,  and 
that  "the  unquestioned  right  to  adopt  a  measure  of  this  sort  makes 
objection  to  it  inadvisable. ' ' 

The  question,  however,  arose  in  acute  form  in  the  course  of  1916 

'  The  Hague  Conventions  and  Declarations  of  1899  and  1907,  p.  134. 
2  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  255-256. 


60         A  SURVEY  OF  INTERNATIONAL  RELATIONS 

from  the  repeated  interference  by  Great  Britain  and  France  with 
the  mails.  It  should  be  said,  in  the  first  place,  that  there  was  little 
difficulty  in  reaching  an  agreement  on  what  may  be  called  the  com- 
mercial phase  of  the  matter,  that  is  to  say,  that  the  parcel  post  should 
be  considered  as  merchandise  and  that  belligerents  could  properly 
exercise  the  right  of  visit  and  search  as  in  the  case  of  other  mer- 
chandise. The  case  might  be  considered  closer  or  open  to  doubt  in  the 
transmission  of  articles  of  commerce  in  sealed  packages  at  the  rates  of 
letter  postage,  and  the  Allies  insisted  that  the  first  class  mails  were 
used  in  this  way  to  transmit  samples  of  such  a  nature  and  to  such  an 
extent  as  to  become  a  mere  matter  of  commercial  export.  The  United 
States  was  unwilling  to  yield  to  the  representations  of  the  Allies, 
and  set  itself  like  flint  against  any  and  every  attempt  to  censor  any 
letters  upon  a  neutral  vessel  on  the  high  seas  or  when  such  vessel 
was  brought  against  its  will  into  an  allied  port,  there  to  be  more 
easily  examined,  or  when  the  vessel  had  voluntarily  touched  at  an 
allied  port  in  the  course  of  its  voyage.  It  admitted,  however,  the 
right  of  the  allied  Governments  to  censor  mail  matter  of  this  class 
which  came  within  the  allied  jurisdiction  in  ordinary  course. 

This  attitude  was  firmly  and  persistently  taken  and  maintained 
by  Secretary  Lansing.  Thus,  in  a  telegram  dated  January  4,  1916, 
to  the  American  Ambassador  to  Great  Britain,  he  stated  that  some 
734  bags  of  parcel  mail  had  been  removed  by  British  customs  authori- 
ties from  the  Danish  steamer  Oscar  II  en  route  from  the  United 
States  to  Norway,  Sweden,  and  Denmark;  that  fifty-eight  bags  of 
parcel  mail  had  been  removed  from  the  Swedish  steamer  StockJiolm 
en  route  from  Gothenburg  to  New  York;  that  5,000  packages  of 
American  merchandise  had  been  seized  by  British  authorities  on 
the  Danish  steamer  The  United  States  on  her  last  voyage  to  this 
country;  that  597  bags  of  parcel  mail  had  been  removed  by  the 
British  customs  authorities  from  the  steamer  Frederick  VIII  when 
in  port  at  Kirkwall  destined  for  Norway,  Sweden,  and  Denmark. 
On  these  facts  Secretary  Lansing  stated  in  the  concise  and  crisp 
language  of  a  telegram  that  the  "Department  [is]  inclined  to  regard 
parcel  post  articles  as  subject  to  same  treatment  as  articles  sent  as 
express  or  freight  in  respect  to  belligerent  search,  seizure,  and  con- 
demnation. On  the  other  hand,  parcel  post  articles  are  entitled  to 
the  usual  exemptions  of  neutral  trade,  and  the  protests  of  the  Govern- 
ment of  the  United  States  in  regard  to  what  constitutes  the  unlawful 
bringing  in  of  ships  for  search  in  port,  the  illegality  of  so-called 
blockade  by  Great  Britain,  and  the  improper  assumption  of  juris- 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     61 

diction  of  vessels  and  cargoes  apply  to  commerce  using  parcel  post 
service  for  the  transmission  of  commodities."^ 

Secretary  Lansing  next  noted  that,  on  December  23,  1915,  British 
authorities  had  removed  all  mails  from  the  Dutch  steamer  New 
Amsterdam  on  its  voyage  from  the  United  States  to  Holland,  includ- 
ing therein  sealed  mails  and  presumably  American  diplomatic  and 
consular  pouches;  that  on  December  20th  the  British  authorities  at 
the  Downs  had  removed  from  the  Dutch  vessel  Noorder  Dyke  and 
still  held  American  mail  on  its  way  from  the  United  States  to  Rotter- 
dam ;  and  he  further  mentioned  that  mails  had  likewise  been  removed 
from  the  Dutch  steamers  Rotterdam  and  Noordam.  Upon  this  state 
of  facts  Secretary  Lansing  said: 

The  Department  cannot  admit  the  right  of  British  authori- 
ties to  seize  neutral  vessels  plying  directly  between  American 
and  neutral  European  ports  without  touching  at  British  ports, 
to  bring  them  into  port,  and,  while  there,  to  remove  or  censor 
mails  carried  by  them.  Modern  practice  generally  recognizes  that 
mails  are  not  to  be  censored,  confiscated,  or  destroyed  on  high 
seas,  even  when  carried  by  belligerent  mail  ships.  To  attain  [the] 
same  end  by  bringing  such  mail  ships  within  British  jurisdiction 
for  purposes  of  search  and  then  subjecting  them  to  local  regu- 
lations allowing  censorship  of  mails  cannot  be  justified  on  the 
ground  of  national  jurisdiction.  In  cases  where  neutral  mail 
ships  merely  touch  at  British  ports,  the  Department  believes  that 
British  authorities  have  no  international  right  to  remove  the 
sealed  mails  or  to  censor  them  on  board  ship.  Mails  on  such 
ships  never  rightfully  come  into  the  custody  of  the  British  mail 
service,  and  that  service  is  entirely  without  responsibility  for 
their  transit  or  safety."" 

Secretary  Lansing  thereupon  called  attention  to  the  consequences  of 
such  pretensions  and  actions  on  the  part  of  British,  and,  in  later 
communications,  on  the  part  of  allied,  authorities: 

As  a  result  of  British  action,  strong  feeling  is  being  aroused 
in  this  country  on  account  of  the  loss  of  valuable  letters,  money- 
orders  and  drafts,  and  foreign  banks  are  refusing  to  cash  Ameri- 
can drafts,  owing  to  the  absence  of  any  security  that  the  drafts 
will  travel  safely  in  the  mails.  Moreover,  the  detention  of  diplo- 
matic and  consular  mail  is  an  aggravating  circumstance  in  a 
practice  which  is  generally  regarded  in  this  country  as  vexa- 

'  OflBcial  text,  American  Journal  of  International  Laio,  Special  Supplement, 
October,  1916,  p.  404. 
'  Ibid.,  p.  405. 


62  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

tiously  inquisitorial  and  without  compensating  military  advan- 
tage to  Great  Britain.' 

Secretary  Lansing  rightly  regarded  the  matter  as  one  of  very  great 
importance  going  to  the  root  of  neutral  rights,  and  he  directed  the 
American  Ambassador  to  lay  it  before  the  British  authorities  "in  a 
formal  and  vigorous  protest  and  press  for  a  discontinuance  of  these 
unwarranted  interferences  with  inviolable  mails." 

Great  Britain  and  France  gladly  accepted  Secretary  Lansing's 
concession  in  the  matter  of  parcel  post,  but  they  insisted,  because 
of  the  alleged  misconduct  of  Germany,  in  examining  and  censoring 
mail  falling  within  Mr.  Lansing's  inhibited  categories.  The  allied 
view,  to  which  they  adhered  during  the  entire  period  of  American 
neutrality,  is  thus  stated  in  summary  form  in  a  memorandum  trans- 
mitted on  April  3,  1916,  by  the  French  Ambassador  to  the  United 
States  in  behalf  of  the  allied  Powers. 

1.  That  from  the  standpoint  of  their  right  of  visitation  and 
eventual  arrest  and  seizure,  merchandise  shipped  in  post  parcels 
needs  not  and  shall  not  be  treated  otherwise  than  merchandise 
shipped  in  any  other  manner. 

2.  That  the  inviolability  of  postal  correspondence  stipulated 
by  the  Eleventh  Convention  of  The  Hague  of  1907  does  not  in 
any  way  affect  the  right  of  the  allied  Governments  to  visit  and, 
if  occasion  arise,  arrest  and  seize  merchandise  hidden  in  the 
wrappers,  envelopes,  or  letters  contained  in  the  mail  bags. 

3.  That  true  to  their  engagements  and  respectful  of  genuine 
"correspondence,"  the  allied  Governments  will  continue,  for  the 
present,  to  refrain  on  the  high  seas  from  seizing  and  confiscating 
such  correspondence,  letters,  or  despatches,  and  will  insure  their 
speediest  possible  transmission  as  soon  as  the  sincerity  of  their 
character  shall  have  been  ascertained.^ 

In  a  note  to  the  British  Ambassador  at  Washington,  dated  March  24, 
1916,  Secretary  Lansing  set  forth  at  length  and  in  detail  the  Ameri- 
can position,  which  on  this  point  never  varied.  From  this  important 
document  the  following  passages  are  taken : 

It  is  noted  with  satisfaction  that  the  British  and  French 
Governments  do  not  claim,  and,  in  the  opinion  of  this  Govern- 
ment, properly  do  not  claim,  that  their  so-called  "blockade" 
measures  are  sufficient  grounds  upon  which  to  base  a  right  to 
interfere  with  all  classes  of  mail  matter  in  transit  to  or  from 

*  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  405. 
2  Ibid.,  p.  410. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     63 

the  central  powers.  On  the  contrary,  their  contention  appears 
to  be  that,  as  "genuine  correspondence"  is  under  conventional 
stipulation  "inviolable,"  mail  matter  of  other  classes  is  subject 
to  detention  and  examination.  "While  the  Government  of  the 
United  States  agrees  that  "genuine  correspondence"  mail  is 
inviolable,  it  does  not  admit  that  belligerents  may  search  other 
private  sea-borne  mails  for  any  other  purpose  than  to  discover 
whether  they  contain  articles  of  enemy  ownership  carried  on 
belligerent  vessels  or  articles  of  contraband  transmitted  under 
sealed  cover  as  letter  mail,  though  they  may  intercept  at  sea  all 
mails  coming  out  of  and  going  into  ports  of  the  enemy's  coasts 
which  are  effectively  blockaded.  The  Governments  of  the  United 
States,  Great  Britain,  and  France,  however,  appear  to  be  in 
substantial  agreement  as  to  principle.  The  method  of  applying 
the  principle  is  the  chief  cause  of  difference. 

Though  giving  assurances  that  they  consider  "genuine  corre- 
spondence" to  be  "inviolable,"  and  that  they  will,  "true  to  their 
engagements,"  refrain  "on  the  high  seas"  from  seizing  and  con- 
fiscating such  correspondence,  the  allied  Governments  proceed 
to  deprive  neutral  Governments  of  the  benefits  of  these  assur- 
ances by  seizing  and  confiscating  mail  from  vessels  in  port  instead 
of  at  sea.  They  compel  neutral  ships  without  just  cause  to  enter 
their  own  ports  or  they  induce  shipping  lines,  through  some  form 
of  duress,  to  send  their  mail  ships  via  British  ports,  or  they 
detain  all  vessels  merely  calling  at  British  ports,  thus  acquiring 
by  force  or  unjustifiable  means  an  illegal  jurisdiction.  Acting 
upon  this  enforced  jurisdiction,  the  authorities  remove  all  mails, 
genuine  correspondence  as  well  as  post  parcels,  take  them  to 
London,  where  every  piece,  even  though  of  neutral  origin  and 
destination,  is  opened  and  critically  examined  to  determine  the 
"sincerity  of  their  character,"  in  accordance  with  the  interpre- 
tation given  that  undefined  phrase  by  the  British  and  French 
censors.  Finally  the  expurgated  remainder  is  forwarded,  fre- 
quently after  irreparable  delay,  to  its  destination.  Ships  are 
detained  en  route  to  or  from  the  United  States  or  to  or  from 
other  neutral  countries,  and  mails  are  held  and  delayed  for 
several  days  and,  in  some  cases,  for  weeks  and  even  months, 
even  though  not  routed  to  ports  of  North  Europe  via  British 
ports.  This  has  been  the  procedure  which  has  been  practiced 
since  the  announcement  of  February  15,  1916.  To  some  extent 
the  same  practice  was  followed  before  that  date,  calling  forth 
the  protest  of  this  Government  on  January  4,  1916.  But  to  that 
protest  the  memorandum  under  acknowledgment  makes  no  ref- 
erence and  is  entirely  unresponsive.  The  Government  of  the 
United  States  must  again  insist  with  emphasis  that  the  British 
and  French  Governments  do  not  obtain  rightful  jurisdiction  of 
ships  by  forcing  or  inducing  them  to  visit  their  ports  for  the 
purpose  of  seizing  their  mails,  or  thereby  obtain  greater  belliger- 
ent rights  as  to  such  ships  than  they  could  exercise  on  the  high 


64  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

seas ;  for  there  is,  iu  the  opinion  of  the  Government  of  the  United 
States,  no  legal  distinction  between  the  seizure  of  mails  at  sea, 
which  is  announced  as  abandoned,  and  their  seizure  from  vessels 
voluntarily  or  involuntarily  in  port.  The  British  and  French 
practice  amounts  to  an  unwarranted  limitation  on  the  use  by 
neutrals  of  the  world's  highway  for  the  transmission  of  corre- 
spondence. The  practice  actually  followed  by  the  allied  Powers 
must  be  said  to  justify  the  conclusion,  therefore,  that  the 
announcement  of  February  15th  was  merely  notice  that  one 
illegal  practice  had  been  abandoned  to  make  place  for  the  devel- 
opment of  another  more  onerous  and  vexatious  in  character/ 

It  should  be  said  in  this  connection,  before  leaving  this  phase  of 
the  subject,  that,  although  the  allied  Powers  stated  themselves  as 
driven  to  the  censorship  of  mails  by  Germany's  illegal  conduct  of  the 
war,  they  were  nevertheless  unable  to  cite  a  single  instance  in  which 
Germany  had  tampered  with  the  mails  other  than  those  passing 
through  its  territorial  jurisdiction.  It  is  safe  to  assume,  therefore, 
that  Germany  did  not  censor  mails.  Indeed,  in  the  case  of  the  French 
steamer  Floride,  sunk  early  in  1915,  the  Postmaster  General  stated 
that  "the  German  auxiliary  cruiser  Prim  Eitel  Friedrich  delivered  to 
the  postmaster  at  Newport  News,  Va.,  on  March  12,  144  mail  bags  for 
places  in  South  America  which  had  been  transshipped  from  the 
French  steamer  Floride  to  the  said  cruiser  before  it  sank  the 
steamer.  The  despatches,  which  appeared  to  be  intact,  were  sent  to 
the  New  York  office,  whence  they  were  forwarded  to  destination 
in  the  same  condition  and  at  the  first  opportunity."  '  It  is  true  that 
mail  matter  on  board  ships  sunk  by  German  vessels  was  lost,  but 
it  appears  to  be  beyond  controversy  that,  although  mails  went  down 
and  were  lost  with  the  vessels  carrying  them,  the  German  authori- 
ties neither  set  nor  followed  the  example  of  the  Allies  in  the  censor- 
ship of  mails.  And  it  should  be  further  noted  in  this  connection 
that  the  proposition  to  free  mail  from  censorship  upon  the 
high  seas  adopted  by  the  Second  Hague  Peace  Conference  was 
upon  the  motion  of  the  Imperial  German  delegation,"  that  it  was 

^  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  413-414. 
2  Ibid.,  p.  410. 

•  On   introducing  the  German   proposal,   Dr.  Kriege   said,   on  behalf  of  the 
Imperial  German  Government: 

II  y  a  encore  une  autre  question  qui  se  rattache  a  celle  de  la  contrebande 
et  au  sujet  de  laquelle  la  D^l^gation  allemande  a  d^pos6  une  proposition 
speciale.  II  s'agit  de  la  protection  de  la  correspondance  postale  en  temps 
de  guerre  maritime.  Nous  peneons  qu'il  y  aurait  avantage  h  fitablir  le 
principe  que  la  correspondance  postale  expediee  par  mer  est  inviolable. 
Les  relations  postales  ont,  a  notre  ^poque,  une  telle  importance,  11  y  a 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      65 

supported  by  Great  Britain  and  France,  signed  by  the  representa- 
tives of  these  countries,  and  ratified  by  Great  Britain  on  November  27, 
1909,  and  by  France  on  October  7,  1910.  The  articles  in  question 
to  be  found  in  The  Hague  Convention  restricting  the  right  of  cap- 
ture in  naval  war  are  thus  worded : 

The  postal  correspondence  of  neutrals  or  belligerents,  what- 
ever its  official  or  private  character  may  be,  found  on  the  high 
seas  on  board  a  neutral  or  enemy  ship,  is  inviolable.  If  the  ship 
is  detained,  the  correspondence  is  forwarded  by  the  captor  with 
the  least  possible  delay. 

The  provisions  of  the  preceding  paragraph  do  not  apply,  in 
case  of  violation  of  blockade,  to  correspondence  destined  for  or 
proceeding  from  a  blockaded  port.     {Article  1.) 

The  inviolability  of  postal  correspondence  does  not  exempt 
a  neutral  mail  ship  from  the  laws  and  customs  of  maritime  war 
as  to  neutral  merchant  ships  in  general.  The  ship,  however, 
may  not  be  searched  except  when  absolutely  necessary,  and  then 
only  with  as  much  consideration  and  expedition  as  possible. 
{Article  2.)  ^ 

tant  d'int^rets,  commerciaux  et  autres,  bas^s  sur  le  service  r4gulier  de  la 
correspondance,  qu'il  est  grandement  desirable  de  la  mettre  a  I'abri  des  per- 
turbations qui  pourraient  etre  caus^es  par  la  guerre  maritime.  De  I'autrg 
cot€,  il  n'est  gu&re  probable  que  les  bellig^rants,  qui  disposent  pour  la 
transmission  de  leurs  d^peches  des  voies  de  la  t6l6graphie  et  de  la  radio- 
t616graphie,  aient  recours  au  trafic  ordinaire  des  postes  en  vue  des  com- 
munications officielles  qui  se  rapportent  aux  operations  militaires.  Le  profit 
a  retirer  pour  les  belligerants  du  controle  du  service  postal,  n'est  done  point 
en  rapport  avec  les  prejudices  que  I'exercice  de  ce  controle  entraine  pour 
le  commerce   legitime. 

Le  moyen  le  plus  eflBcace  pour  atteindre  au  but,  consisterait  4  exon^rer 
de  tout  controle  les  navires  qui  font  le  service  postal  r^gulier,  Cependant, 
cela  ne  parait  gu&re  possible.  II  faudrait  se  borner  a  Micter  que  les 
belligerants  doivent  tenir  compte  de  leur  caract§re  special  et  s'abstenir 
autant  que  possible,  d'exercer  sur  eux  le  droit  de  visite.  Mais  I'inviolabilite 
devrait  etre  absolue  a  I'egard  de  la  correspondance  meme,  quelle  que  flit 
la  nationalite  du  navire  qui  la  porte.  Les  belligerants  n'auraient  pas  le 
droit,  en  cas  de  saisie  d'un  paquebot-poste,  de  desceller,  dans  un  but  de 
controle,  les  sacs  qui  contiennent  les  lettres,  et  ils  seraient  tenus  de  prendre 
les  mesures  necessaires  pour  assurer  leur  prompte  remise  a  destination. 
{Deuxieme  Conference  de  la  Paix,  1907,  tome  iii,  pp.  860-861.) 
^  The  Hague  Conventions  and  Declarations  of  1899  and  1907,  pp.  182-183. 


CHAPTER   V 

UNLAWFUL    SEIZURE    OF    PERSONS    UPON    THE 
HIGH   SEAS 

Section  1.    Searching  op  American  Vessels  for  German  and 
Austrian  Subjects  on  the  High  Seas  and  in  Terri- 
torial Waters  of  a  Belligerent 

Secretary  Bryan's  reply  on  this  matter  is  very  brief  and  to  the 
point.  It  states  the  facts  of  two  leading  cases  which  had  then  occurred, 
to  which  a  few  other  instances  might  be  added,  and  it  lays  down  the 
law  admirably  and  within  the  compass  of  a  couple  of  paragraphs. 
This  portion  of  the  letter  is  therefore  quoted  in  full: 

So  far  as  this  Government  has  been  informed,  no  American 
vessels  on  the  high  seas,  with  two  exceptions,  have  been  detained 
or  searched  by  belligerent  warships  for  German  and  Austrian 
subjects.  One  of  the  exceptions  to  which  reference  is  made  is 
now  the  subject  of  a  rigid  investigation,  and  vigorous  repre- 
sentations have  been  made  to  the  offending  Government.  The 
other  exception,  where  certain  German  passengers  were  made 
to  sign  a  promise  not  to  take  part  in  the  war,  has  been  brought 
to  the  attention  of  the  offending  Government  with  a  declaration 
that  such  procedure,  if  true,  is  an  unwarranted  exercise  of  juris- 
diction over  American  vessels  in  which  this  Government  will  not 
acquiesce. 

An  American  private  vessel  entering  voluntarily  the  terri- 
torial waters  of  a  belligerent  becomes  subject  to  its  municipal 
laws,  as  do  the  persons  on  board  the  vessel. 

There  have  appeared  in  certain  publications  the  assertion 
that  failure  to  protest  in  these  cases  is  an.  abandonment  of  the 
principle  for  which  the  United  States  went  to  war  in  1812.  If  the 
failure  to  protest  were  true,  which  it  is  not,  the  principle  involved 
is  entirely  different  from  the  one  appealed  to  against  unjusti- 
fiable impressment  of  Americans  in  the  British  Navy  in  time 
of  peace.^ 

The  cases  to  which  reference  is  made  are  those  of  August  Piepen- 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  256-257. 


A  SURVEY  OF  INTERNATIONAL  RELATIONS  67 

brink  and  TJie  Metapan,  and  the  facts  in  each  case  will  be  given, 
with  a  reference  to  the  law  on  the  subject. 

One  August  Piepenbrink  was  serving  as  steward  on  board  the 
American  ship  Windher,  from  which  he  was  removed  by  the  French 
cruiser  Conde  when  both  vessels  were  upon  the  high  seas,  taken  to 
Kingston  in  the  island  of  Jamaica  and  imprisoned  by  the  British 
authorities  as  a  German  subject  and  therefore  an  enemy  of  the  Allies. 
It  appears  from  the  evidence  in  the  case  that  Piepenbrink  was  in 
fact  a  German  subject,  for  although  he  had  declared  his  intention 
to  become  an  American  citizen,  he  had  not  divested  himself  of  Ger- 
man nationality  by  taking  out  his  final  papers,  that  is  to  say,  by 
becoming  an  American  citizen  according  to  the  laws  of  the  United 
States.  We  do  not  need  to  speculate  as  to  his  status,  because  he 
was  born  in  Hanover  after  its  absorption  by  Prussia  in  1866,  and 
the  so-called  Bancroft  Treaty  of  1868  with  the  North  German  Con- 
federation, of  which  Prussia  then  formed  a  part,  specifically  declares 
that  "the  declaration  of  the  intention  to  become  a  citizen  of  one  or 
the  other  country  has  not  for  either  party  the  effect  of  naturaliza- 
tion. ' '  ^  Piepenbrink,  therefore,  was  not  a  citizen  of  the  United 
States.  He  had  no  right  to  claim  the  protection  of  the  United  States, 
and  it  was  for  the  United  States  to  determine  whether  and  to  what 
degree  it  should  use  its  good  offices  in  his  behalf. 

There  was,  however,  in  this  case  a  very  real  ground  for  protest^ 
irrespective  of  nationality  or  citizenship,  namely,  the  fact  that  Piepen- 
brink was  a  member  of  the  crew  of  an  American  ship;  the  right 
of  the  United  States  to  protest  would  have  been  the  same  had  he 
been  a  passenger  instead  of  a  member  of  the  crew,  and  the  American 
ship  Windher,  within  the  jurisdiction  of  the  United  States  or  upon 
the  high  seas,  was  subject  to  the  exclusive  jurisdiction  of  the  United 
States.  A  neutral  merchantman  may  be,  in  time  of  war,  visited  and 
searched  by  the  belligerent  in  order  to  see  whether  it  is  or  is  not 
performing  its  neutral  duties,  but  no  person,  whether  member  of  the 
crew  or  passenger,  can  legally  be  removed  from  the  vessel  without 
a  violation  of  the  law  of  Nations  or  without  a  general  or  special 
treaty  granting  the  alleged  right. 

The  United  States  thought  otherwise  in  1861,  or  rather  Captain 
Wilkes  of  TJie  San  Jacinto  was  of  a  contrary  opinion,  and  the  Gov- 
ernment of  the  United  States  sought  to  justify  his  act  in  stopping 
and  removing  from  the  steamer  Trent,  a  British  and,  therefore,  a 

^  Treaties,  Conventions,  etc.,  between  the  United  States  of  America  and  other 
powers,  1776-1900  [compiled  by  Wm.  M.  Malloy  (Senate  d.  357,  Gist  Cong., 
2d  sess.)  ;  Washington,  1910,  2  vols.],  vol.  2,  p.  1299. 


68  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

neutral  merchant  vessel,  on  its  voyage  from  Havana  to  St.  Thomas 
(then  belonging  to  Denmark)  en  route  to  England,  Messrs.  Mason 
and  Slidell,  commissioners  of  the  Confederacy  to  Europe  for  the  pur- 
pose of  securing  the  recognition  of  and  support  for  the  Southern 
States.  They  were  civilians;  they  were  not  embodied  in  the  military 
forces  of  the  Confederacy.  Secretary  of  State  Seward  endeavored  to 
assimilate  them  with  contraband,  and  on  that  theory  Captain  Wilkes 
might  have  been  justified  in  stopping  the  vessel,  bringing  it  into  port, 
and,  by  judicial  procedure,  securing  the  possession  of  the  Confederate 
emissaries.  However,  Secretary  Seward's  subtlety  yielded  to  Presi- 
dent Lincoln's  judgment  and  sense  of  expediency,  and  Messrs.  Mason 
and  Slidell  were  handed  over  to  the  British  authorities  with  an 
appropriate  expression  of  regret. 

Secretary  Seward's  contention  may  or  may  not  have  been  cor- 
rect, but  the  United  States  could  only  lawfully  remove  Messrs.  Mason 
and  Slidell  from  a  neutral  vessel  upon  the  high  seas  under  a  rule 
of  law  allowing  this  to  be  done.  There  was  no  such  rule  then  and 
there  is  none  now.  There  was  a  suggestion  of  such  a  rule  in  Article 
47  of  the  Declaration  of  London,  providing  that  persons  embodied 
in  the  armed  forces  of  the  enemy  could  be  removed  from  a  vessel; 
but  Piepenbrink  was  not  embodied  in  the  armed  forces  of  Germany, 
and  France  could  not  claim  the  benefit  of  this  article,  because  the 
Declaration  of  London  was  only  an  attempt  at  a  treaty,  and  was  not 
ratified  by  any  nation.  But  even  if  the  Declaration  of  London  could 
have  been  appealed  to,  it  would  not  have  supported  the  contention, 
because  this  right  was  interpreted  by  the  Nations  in  conference  to 
apply  solely  to  persons  embodied  in  the  military  forces  of  the  enemy 
and  not  to  reservists.  That  is  to  say,  it  was  limited  to  persons  actually 
in  the  army  or  navy,  not  to  those  owing  a  duty  to  serve  in  the  army 
or  navy. 

It  is  not  necessary  to  pursue  this  phase  of  the  subject  further, 
because  the  three  parties  to  this  transaction  are  on  record  against 
it:  first,  Great  Britain's  protest  in  the  matter  of  Tlie  Trent;  second, 
France's  protest  likewise  in  the  matter  of  TJie  Trent;  third,  the  sur- 
render of  Messrs.  Mason  and  Slidell  by  the  United  States  in  conse- 
quence of  these  protests,  and,  above  and  beyond  all,  the  protest  which 
in  1812  resulted  in  the  war  of  the  United  States  against  Great 
Britain,  due  in  large  measure  to  the  removal  from  American  vessels 
of  persons  claimed  to  be  citizens  of  the  United  States.  Nations  live 
long  and  they  should  have  long  memories. 

In  his  telegram  of  March  2,  1915,  to  the  American  Ambassador 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     69 

at  London,  protesting  against  Piepenbrink's  seizure  and  requesting 
that  he  be  delivered  to  the  American  authorities,  Secretary  Bryan 
quoted  with  approval  Lord  Russell's  comment  on  the  Trent  case  as 
follows : 

If  the  real  terminus  of  the  voyage  be  bona  fide  in  a  neutral 
territory,  no  English,  nor,  indeed,  as  Her  Majesty's  Government 
believe,  any  American,  authority  can  be  found  which  has  ever 
given  countenance  to  the  doctrine  that  either  men  or  despatches 
can  be  subject,  during  such  a  voyage,  and  on  board  such  a  neu- 
tral vessel,  to  belligerent  capture  as  contraband  of  war.^ 

And  in  a  telegram  of  the  same  date  to  the  American  Ambassador 
to  Paris  on  the  same  subject,  Secretary  Bryan  quoted  with  deadly 
effect  the  following  passage  from  the  French  protest  of  December  3, 
1861,  to  the  United  States,  protesting  against  the  violation  of  neutral 
right  by  the  removal  of  Messrs.  Mason  and  Slidell  from  a  neutral 
vessel : 

The  destination  of  TJie  Trent  was  not  a  point  belonging  to  one 
of  the  belligerents.  She  was  carrying  her  cargo  and  her  pas- 
sengers to  a  neutral  country,  and,  moreover,  she  had  taken  them 
on  in  a  neutral  port.  If  it  were  admissible  that  under  such 
conditions  the  neutral  flag  did  not  completely  cover  the  persons 
and  merchandise  which  it  was  transporting,  its  immunity  would 
not  longer  be  anything  but  an  empty  word;  at  any  time  the 
commerce  and  navigation  of  third  Powers  would  have  to  suffer 
from  their  harmless  or  even  indirect  relations  with  one  or  the 
other  of  the  belligerents ;  the  latter  would  no  longer  be  entitled 
merely  to  require  entire  impartiality  of  a  neutral  and  to  forbid 
him  from  interfering  in  any  way  in  the  hostilities,  but  they 
would  place  upon  his  freedom  of  commerce  and  navigation  re- 
strictions the  lawfulness  of  which  modern  international  law  has 
refused  to  admit.' 

In  the  face  of  these  protests  Great  Britain  and  France  were 

powerless,  but  they  did  not  yield  gracefully  to  the  inevitable.     On 

April  3,  1915,  the  British  Secretary  of  State  for  Foreign  Affairs 

informed  the  American  Ambassador  to  London  that  "His  Majesty's 

Government,  in  common  with  the  French  Government,  have  decided 

to  liberate  this  man  as  a  friendly  act,  while  reserving  the  question 

of  principle  involved."     And  on  the  15th  of  the  same  month  the 

French  Minister  of  Foreign  Affairs  made  an  identical  statement  to 

the  American  Ambassador  at  Paris. 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.  355. 
''Hid.,  pp.  355-356. 


70         A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  other  case  to  which  reference  is  made  in  Secretary  Bryan's 
letter  is  that  of  Tlie  Metapan,  an  American  steamer  owned  by  the 
Metapan  Steamship  Company,  a  subsidiary  branch  of  the  United 
Fruit  Company.  27ie  Metapan  was  boarded  on  October  4,  1914,  by 
the  French  cruiser  Conde,  and  passengers  of  German  nationality, 
traveling  from  New  York  by  way  of  Colon  to  Barranquila,  were 
forced  to  sign  an  agreement  "not  to  take  up  arms  in  the  present 
European  War  or  until  exchanged,  under  threat  of  being  forcibly 
taken  from  the  ship  as  prisoners  of  war."  There  are  some  cases, 
Lord  Mansfield  was  accustomed  to  say,  so  clear  that  they  can  only 
be  obscured  by  argument,  and  this  would  seem  to  be  one  of  them. 
The  captain  of  The  Conde  did  not  seem  to  be  better  informed  of 
the  rights  and  duties  of  Nations  under  a  reasonable  system  of  inter- 
national law  than  was  Captain  Wilkes  of  Tlie  San  Jacinto.  The  act  of 
both  was  illegal,  the  act  of  both  was  condemned,  and  the  act  of  both 
stands  condemned  by  the  practice  of  Nations. 

Within  a  month  of  Secretary  Bryan's  reply  to  Senator  Stone — to 
be  specific,  on  February  18th — ^the  British  cruiser  Laurentic  stopped 
the  American  steamship  China  on  the  high  seas  some  ten  miles  from 
the  coast  of  China,  and,  over  the  captain's  protest,  removed  twenty- 
eight  Germans,  eight  Austrians,  and  two  Turks,  taking  them  to 
Hongkong,  where  they  were  detained  as  prisoners  of  war.  The 
United  States  protested  against  this  action  of  the  British  man-of-war, 
inasmuch  as  none  of  the  persons  taken  off  The  China  were  incorpo- 
rated in  the  armed  forces  of  Great  Britain 's  enemies.  Had  they  been 
so,  they  might  probably  have  been  taken  off;  but,  as  they  were  not 
embodied  in  the  armed  forces,  they  could  not  lawfully  be  removed, 
and  the  United  States  regarded  the  action  of  Great  Britain  "as  an 
unwarranted  invasion  of  the  sovereignty  of  American  vessels  on  the 
high  seas."  The  United  States  further  stated  that  the  action  of  the 
British  Government  was  in  violation  of  Lord  Russell's  contention  in 
the  Trent  case,  and  that  it  was  surprised  "at  this  exercise  of  belliger- 
ent power  on  the  high  seas  so  far  removed  from  the  zone  of  hostile 
operations."  The  American  Ambassador  was  therefore  directed  by 
Mr.  Lansing  to  lay  the  case  before  Great  Britain,  and  ' '  to  insist  vigor- 
ously that,  if  facts  are  as  reported,  orders  be  given  for  the  immediate 
release  of  the  persons  taken  from  The  China."  "^ 

The  British  Government  replied  in  a  long,  carefully  prepared  note, 
distinguishing  the  case  of  The  China  from  that  of  The  Trent,  inasmuch 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.  427. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     71 

as  the  persons  removed  from  Tlie  China  were  reservists  and  therefore 
liable  to  military  duty — although  they  were  not  incorporated  in  the 
armed  forces  of  the  enemy ; — that  they  were  actually  engaged  in  the 
service  of  the  enemy,  in  that  they  were  plotting  in  neutral  territory 
to  collect  arms  and  ammunition  to  organize  expeditions  against 
British  India;  and  that,  if  they  were  not  apprehended,  they  would 
continue  their  operations  against  Great  Britain  in  other  neutral 
territory. 

In  the  case  of  The  Trent,  Messrs.  Mason  and  Slidell  were  civilian 
passengers,  proceeding  to  Europe  on  a  diplomatic  mission,  at  a  time 
when  "the  suggestion  that  the  functions  of  a  diplomatic  represen- 
tative should  include  the  organizing  of  outrages  upon  the  soil  of  the 
neutral  country  to  which  he  was  accredited  was  unheard  of,  and  the 
removal  of  the  gentlemen  in  question  could  only  be  justified  on  the 
ground  that  their  representative  character  was  sufficient  to  bring 
them  within  the  classes  of  persons  whose  removal  from  a  neutral 
vessel  was  justifiable."  ^  Without  pausing  to  question  the  novel  func- 
tion with  which  Great  Britain  credited  or  debited  the  diplomatic 
agents  of  the  enemy — which  would  be  difficult,  in  view  of  the  dis- 
closures of  German  activity  in  the  United  States,  at  a  time  when  it 
was  neutral — the  balance  of  the  passage  dealing  with  this  phase  of 
the  question  is  quoted: 

The  distinction  between  such  persons  and  German  agents 
whose  object  is  to  make  use  of  the  shelter  of  a  neutral  country 
in  order  to  foment  risings  in  British  territory,  to  fit  out  ships 
for  the  purpose  of  preying  on  British  commerce,  and  to  organize 
outrages  in  the  neutral  country  itself  is  obvious.^ 

The  British  Secretary  of  State,  however,  did  not  let  the  matter  rest 
here,  saying: 

I  do  not  think  it  will  be  disputed  that  persons  of  this  descrip- 
tion must  be  placed  within  the  category  of  individuals  who  may, 
without  any  infraction  of  the  sovereignty  of  a  neutral  State  be 
removed  from  a  neutral  vessel  on  the  high  seas.  The  object  of 
their  journey  was  to  find  another  neutral  asylum  in  which  they 
might  continue  their  operations  against  the  interests  of  this 
country.  The  acts  which  they  desired  to  perform  upon  the  soil 
of  the  United  States  were  such  as  possibly  to  compromise  the 
neutrality  of  that  country  or  to  constitute  an  offense  against  its 
criminal  laws.     They  were  in  effect  persons  whose  past  actions 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.   432. 
2  Ibid. 


72         A  SURVEY  OF  INTERNATIONAL  RELATIONS 

and  future  intentions  deprived  them  of  any  protection  from  the 
neutral  flag  under  which  they  were  sailing.^ 

Apparently,  the  disclaimer  on  the  part  of  the  British  Govern- 
ment to  overhaul  indiscriminately  and  to  justify  specifically  an  act 
which  might  be  considered  an  invasion  of  American  sovereignty, 
coupled  with  the  knowledge  of  the  activity  of  German  agents  in  the 
United  States  and  elsewhere,  led  the  authorities  at  Washington  to 
overlook  the  technical  violation  of  a  right  which  was  being  used  as  the 
cover  of  a  wrong,  for  there  is  no  further  correspondence  on  the  case. 

Section  2.   Arrest  of  Americans  on  Neutral  Vessels 

In  Senator  Stone's  letter  there  is  a  charge  of  "submission  to 
arrest  of  native-born  Americans  on  neutral  vessels  and  in  British 
ports  and  their  imprisonment."  This  grievance  differs  from  the  one 
just  considered  in  that  native-born  Americans  are  alleged  to  have  been 
removed  from  neutral  vessels  on  the  high  seas  and  in  British  ports 
and  to  have  been  imprisoned,  whereas  the  charge  under  discussion 
relates  to  the  removal  of  German  and  Austrian  subjects  from  Ameri- 
can vessels  upon  the  high  seas  and  in  the  territorial  waters  of  the 
belligerent.  It  does  not  seem  advisable  to  go  over  ground  which 
has  already  been  traversed  and  to  descant  further  upon  the  unlaw- 
fulness of  overhauling  neutral  vessels  upon  the  high  seas  and  re- 
moving therefrom  any  person,  American  or  foreigner.  The  case  is 
somewhat  different,  however,  when  a  vessel  forsakes  the  high  seas 
and  enters  the  territorial  waters  of  a  country,  for  if  it  does  so  volun- 
tarily it  subjects  itself  to  the  jurisdiction  of  that  country.  As  a 
consequence,  an  American  on  board  such  a  vessel  can  be  arrested  if 
he  has  violated  the  law  of  that  jurisdiction,  for  merchant  vessels  are, 
under  the  law  of  Nations,  subject  to  the  jurisdiction  of  the  port  in 
which  they  happen  to  be.  The  action  of  Great  Britain  or  of  any 
foreign  country  under  such  circumstances  would  mean  nothing  more 
nor  less  than  the  arrest  of  an  American  citizen  who  happened  to  be 
sojourning  or  passing  through  Great  Britain,  and  the  rightfulness 
or  wrongfulness  of  the  act  would  be  tested  by  the  guilt  or  innocence 
of  the  American  citizen  according  to  British  law. 

In  view  of  this  state  of  affairs  it  does  not  seem  necessary  to  add 
to  the  following  statement  on  this  subject  contained  in  Secretary 
Bryan 's  letter : 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  431-432. 


BETWEEN  THE  UNITED  STATES  AND  GEKMANY      73' 

The  general  charge  as  to  the  arrest  of  American-born  citizens 
on  board  neutral  vessels  and  in  British  ports,  the  ignoring  of 
their  passports,  and  their  confinement  in  jails  requires  evidence 
to  support  it.  That  there  have  been  cases  of  injustice  of  this 
sort  is  unquestionably  true,  but  Americans  in  Germany  have 
suffered  in  this  way  as  Americans  have  in  Great  Britain.  This 
Government  has  considered  that  the  majority  of  these  cases  re- 
sulted from  overzealousness  on  the  part  of  subordinate  officials 
in  both  countries.  Every  case  which  has  been  brought  to  the 
attention  of  the  Department  of  State  has  been  promptly  inves- 
tigated and,  if  the  facts  warranted,  a  demand  for  release  has 
been  made.^ 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  263-264. 


CHAPTER   VI 

RESTRAINTS    ON   COMMERCE 

Section  1.    Contraband 

Five  headings  of  Senator  Stone's  letter  and  of  Secretary  Bryan's 
reply  are  so  interrelated  that  they  can  be  treated  as  phases  of  a 
single  question,  namely,  American  acquiescence  in  British  interfer- 
ence with  American  trade.  The  headings,  however,  are  interesting 
in  themselves,  and  as  they  state  the  nature  and  limit  the  scope  of  the 
discussion  they  are  quoted  in  their  original  order: 

4.  Submission  without  protest  to  British  violations  of  the 
rules  regarding  absolute  and  conditional  contraband  as  laid  down 
in  The  Hague  Conventions,  the  Declaration  of  London,  and 
international  law. 

5.  Acquiescence  without  protest  to  the  inclusion  of  copper 
and  other  articles  in  the  British  lists  of  absolute  contraband. 

6.  Submission  without  protest  to  interference  with  Ameri- 
can trade  to  neutral  countries  in  conditional  and  absolute  con- 
traband. 

7.  Submission  without  protest  to  interruption  of  trade  in 
conditional  contraband  consigned  to  private  persons  in  Germany 
and  Austria,  thereby  supporting  the  policy  of  Great  Britain  to 
cut  off  all  supplies  from  Germany  and  Austria. 

8.  Submission  to  British  interference  with  trade  in  petroleum, 
rubber,  leather,  wool,  etc.^ 

In  regard  to  the  charge  contained  in  this  group  of  headings,  it 
should  be  said  at  once  and  without  reservation  that,  although  The 
Hague  Conventions  have  been  repeatedly  invoked  in  the  matter  of 
contraband,  they  do  not  directly  or  indirectly  regulate,  touch,  or 
concern  this  subject.  And  yet  it  should  be  mentioned  in  this  con- 
nection that  the  delegates  to  the  Second  Hague  Peace  Conference 
attempted  to  do  so  and  that  a  committee  of  the  Conference  considered 
contraband  and  agreed  upon  lists  of  absolute  contraband  which, 
although  not  adopted,  nevertheless  were  submitted  to  the  London 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.  257-258. 

74 


A  SURVEY  OF  INTERNATIONAL  RELATIONS  75 

Naval  Conference,  adopted  by  that  body  of  experts  and  included  in 
Articles  21  and  22  of  its  Declaration ;  and  that  the  London  Conference 
also  agreed  upon  a  list  of  conditional  contraband  and  a  free  list,  that 
is  to  say,  a  list  of  articles  which  should  not  be  considered  either  as 
absolute  or  as  conditional  contraband.  But  the  Declaration  of  London 
was  not  ratified,  and,  in  the  absence  of  an  international  agreement 
negotiated  at  The  Hague,  at  London,  or  elsewhere,  we  are  thrown 
back  upon  the  general  principles  of  international  law  as  evidenced  by 
the  practice  of  Nations. 

In  considering  the  subject  of  contraband  we  are  met  on  the  very 
threshold  with  a  great  difficulty  which  inheres  in  the  thing  itself, 
because,  it  cannot  be  too  often  pointed  out,  there  is,  in  the  absence  of 
a  general  agreement  upon  the  subject,  no  standard  other  than  that 
of  the  individual  interests  of  the  belligerents  by  which  to  test  the 
propriety  of  their  actions.  The  belligerents  have  interests  of  their  own 
which  they  look  after  with  tender  care  and  anxious  solicitude.  The 
neutrals  also  have  interests  of  their  own  which  determine  their  policy 
and  which  point  their  protests.  The  result,  if  result  be  reached,  is  a 
compromise  based  upon  the  balance  of  convenience  or  inconvenience, 
in  reaching  which  the  belligerents  are  ordinarily  unmindful  of  their 
contentions  when  neutral,  and  the  neutrals  apparently  are  unmindful 
of  their  claims  when  belligerent  and  apparently  blind  to  the  fact  that 
they  may  again  be  belligerents. 

There  is  a  general  feeling  that  belligerents  may  properly  pre- 
vent neutral  supplies  from  reaching  the  enemy,  but  when  we  go 
beyond  this  we  enter  the  realm  of  confusion  and  contradiction. 
Delivery  to  the  enemy  may  mean  delivery  to  the  actual  military 
forces  or  to  the  Government  to  which  they  belong,  and  there  is  a 
general  agreement  that  belligerents  may  prevent  this  by  intercepting 
the  articles  on  the  way.  But  if  we  probe  beneath  the  surface  we 
find  that  if  the  articles  of  commerce  can  only  be  used  by  military 
and  naval  forces  it  may  be  presumed  that  destination  to  the  enemy 
country  is  tantamount  to  destination  to  the  army  or  to  the  govern- 
mental authorities.  There  is  a  vast  multitude  of  objects  which  may 
be  used  by  the  army  and  navy  if  they  come  into  their  possession  and 
which  might  be  used  by  the  people  generally  if  they  did  not  fall 
into  the  hands  of  the  armed  forces.  A  belligerent  possessing  sea 
power  will  naturally  seek  to  enlarge  this  list  of  commodities  of  doubt- 
ful use  by  insisting  that,  in  fact  if  not  in  theory,  they  will  find  their 
way  to  the  armed  forces  of  the  enemy,  and  will  therefore  use  its 
maritime  supremacy  to  seize  them  before  they  reach  their  point  of 


76  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

destination.  An  enemy  which  imports  its  foodstuffs,  or  a  large  por- 
tion of  its  foodstuffs,  in  times  of  peace,  and  which  necessarily  relies 
upon  the  outer  world  for  the  enlarged  supplies  required  by  war,  will 
find  the  markets  of  the  world  open  in  theory  but  closed  in  fact  by  its 
enemy  if  it  possesses  mastery  of  the  seas.  Such  a  belligerent  is  likely 
to  use  its  naval  forces  to  blockade  the  enemy  country  so  that  goods 
may  neither  go  in  nor  come  out,  and,  regarding  a  voyage  to  the 
enemy  as  continuous  although  through  neutral  territory,  prevent 
articles  of  contraband  from  reaching  the  enemy  country  through 
neutral  channels. 

There  is  a  general  agreement  that,  in  the  absence  of  blockade, 
neutrals  may  trade  with  the  enemy  in  articles  which  are  meant  for 
peaceable  use  in  the  sense  that  they  cannot  be  used  for  war.  But 
there  is  a  great  divergence  of  opinion  as  to  these  articles,  for  although, 
as  raw  material,  they  may  be  innocent,  nevertheless  they  may  be 
objects  from  which  the  means  and  instrumentalities  of  war  are  manu- 
factured. 

It  is  therefore  fair  to  take  it  as  admitted  that  the  belligerent 
has  the  right  to  capture  certain  articles  destined  to  his  enemy. 
The  method  of  exercising  the  right  and  the  articles  which  may 
properly  be  seized  are  the  subject  of  controversy.  The  United  States 
conceded  during  the  present  war  that  when  belligerent  it  had 
determined  for  itself  the  lists  of  contraband,  that  such  lists  were 
inconsistent  with  its  views  and  policy  when  neutral,  and  that  the 
right  which  it  then  claimed  and  exercised  could  not  properly  be 
denied  to  others  now. 

It  was  largely  because  of  this  divergence  of  view  and  diversity 
of  practice  that  the  United  States  proposed  to  the  belligerents  that 
they  accept  during  the  war  the  Declaration  of  London.  If 
they  had  been  willing  to  do  so  there  would  then  have  been 
a  list  of  absolute  contraband,  which  each  belligerent  might  have 
enlarged  according  to  a  prescribed  method;  a  list  of  conditional  con- 
traband, which  might  in  the  same  way  have  been  increased  by  a 
specified  method ;  and  a  list  of  free  goods,  which  could  not  be  varied 
by  any  of  the  belligerents  during  the  war.  In  this  way  the  lists 
would  have  been  known  in  advance;  the  belligerents,  while  able  to 
vary  the  lists  of  the  first  two  categories,  would  nevertheless  have  been 
required  to  make  their  arrangements  in  accordance  with  the  lists  and 
the  method  prescribed ;  and  neutrals  could  have  made  their  plans  for 
the  future  with  at  least  some  assurance  of  certainty. 

Germany  and  its  Allies  were  willing  to  accept  the  Declaration. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      77 

of  London  in  its  entirety;  Great  Britain  and  its  Allies  were  unwill- 
ing to  do  SO;  and  as  the  Declaration  required  to  be  accepted  as  a 
whole,  if  accepted  at  all,  the  proposal  of  the  United  States  was  there- 
fore rejected  and  withdrawn.  It  is  fair  to  state  in  this  connection 
that,  while  Germany  and  its  Allies  may  be  applauded  for  their  will- 
ingness to  accept  the  Declaration,  Great  Britain  and  its  Allies  are 
not  subject  to  criticism  because  they  were  unwilling  to  do  so.  In  the 
absence  of  an  engagement  each  was  a  free  agent,  and  until  ratified 
the  Declaration  of  London  was  not  a  binding  agreement. 

It  has  been  thought  advisable  to  make  these  observations  before 
taking  up  the  subject  of  contraband,  as  without  understanding  the 
exact  nature  of  the  situation  the  reader  is  likely  to  be  confused  by  the 
divergent  attitude  of  the  belligerent  claiming  that  the  enemy  is  wrong 
and  the  attitude  of  the  United  States  admitting,  and  quite  properly, 
that  neither  was  right. 

Section  2.   Copper 

On  May  23,  1862,  there  was  issued  by  the  Secretary  of  the 
Treasury  of  the  United  States  a  circular  containing  a  very  large 
and  imposing  list  of  contraband,  and  collectors  of  customs  were 
directed  before  giving  clearances  to  require  bonds  with  sufficient 
sureties  against  the  reshipment  of  the  prohibited  articles  from  their 
port  of  destination  to  the  Southern  armies.  This  paragraph,  in  which 
copper  figures,  is  so  important  that  it  is  quoted  in  full: 

You  will  be  especially  careful  upon  application  for  clear- 
ances to  require  bonds,  with  sufficient  sureties,  conditioned  for 
fulfilling  faithfully  all  the  conditions  imposed  by  law  or  depart- 
mental regulations,  from  shippers  of  the  following  articles  to  the 
ports  opened,  or  to  any  other  ports  from  which  they  may  easily 
be,  and  are  probably  intended  to  be,  reshipped  in  aid  of  the 
existing  insurrection,  namely:  liquors  of  all  kinds  other  than 
ardent  spirits,  coals,  iron,  lead,  copper,  tin,  brass,  telegraphic 
instruments,  wire,  porous  cups,  platina,  sulphuric  acid,  zinc, 
and  all  other  telegraphic  materials,  marine  engines,  screw  pro- 
pellers, paddle-wheels,  cylinders,  cranks,  shafts,  boilers,  tubes  for 
boilers,  fire-bars,  and  every  article  or  other  component  part  of 
an  engine  or  boiler,  or  any  article  whatever  which  is,  can  or 
may  become  applicable  for  the  manufacture  of  marine  machinery, 
or  for  the  armor  of  vessels.^ 

By  the  President's  Proclamation  of  April  29,  1865,  issued  when 
the  Civil  War  had  practically  ended,  the  list  of  contraband  was 
''^  Foreign  Relations  of  the  United  States,  1862,  p.  425. 


78    A  SURVEY  OF  INTERNATIONAL  RELATIONS 

specifically  declared  to  include  **arms,  ammunition,  all  articles  from 
•which  ammunition  is  manufactured,  gray  uniforms  and  cloth,  locomo- 
tives, cars,  railroad  iron,  and  machinery  for  operating  railroads, 
telegraph  wires,  insulators,  and  instruments  for  operating  telegraphic 
lines. "  ^  In  the  subsequent  Proclamations  of  June  13  and  of  June  24, 
1865,  the  expression  "all  articles  from  which  ammunition  is  manu- 
factured" is  to  be  found.^ 

At  the  end  of  the  Boxer  troubles  in  China,  when  the  intervening 
Powers  were  imposing  conditions  upon  that  unfortunate  country, 
the  question  arose  and  was  considered  of  permitting  or  of  preventing 
the  manufacture  of  certain  articles  by  Chinese  firms  lest  munitions 
of  war  should  be  made,  fall  into  unsafe  hands,  and  furnish  the  Powers 
with  the  cause  or  pretext  of  intervention  to  put  down  domestic  out- 
breaks affecting  foreigners  and,  therefore,  foreign  countries.  It  was 
necessary  to  enumerate  the  articles  entering  into  the  composition  of 
munitions.  On  this  point  Secretary  of  State  Hay,  speaking  for  the 
United  States,  said  in  a  telegram  of  March  19,  1901,  to  Mr.  Rockhill, 
then  American  Commissioner  and  representing  American  interests: 

The  materials  principally  employed  in  the  manufacture  of 
arms  and  ammunition  are  reported  by  the  War  Department  to 
be  as  follows:  Brass,  copper,  tin,  niter,  lead,  charcoal,  guncotton, 
sulphur,  alcohol,  nitroglycerine,  sulphuric  acid,  nitric  acid,  picric 
acid,  mercuric  fulminate,  raw  cotton;  steel  tubes  and  hoops, 
forged  and  oil  tempered.^ 

It  will  be  noted  that  copper  appears  in  this  list ;  and  before  leaving 
this  subject,  it  should  be  said  that  in  the  first  treaty  with  Great 
Britain  dealing  with  contraband  of  war,  namely,  the  Jay  Treaty  of 
1794,  copper  sheets  are  enumerated  in  Article  18  thereof  as  contra- 
band, and,  in  a  decision  of  Lord  Stowell  on  a  like  clause  in  a  Swedish 
treaty,  he  considered  the  copper  sheets  as  absolute  contraband.*  The 
reason  undoubtedly  was  that  in  those  days  sheet  copper  was  par- 
ticularly useful  for  the  bottoms  of  vessels.  If  now  copper  is  a  neces- 
sary ingredient  of  munitions,  it  seems  to  be  reasonable  to  consider  it 
contraband  because  of  that  fact,  even  although  it  may  be  used  also 
for  peaceful  purposes.  Sheet  copper  could  also  be  used  for  a  peaceful 
purpose.    Bearing  in  mind  the  doctrine  of  continuous  voyage,  to  be 

1  British  and  Foreign  State  Papers,  vol.  56,  p.  191. 

2  Ibid.,  pp.  194,  197. 

s  Foreign  Relations  of   the   United   States,   1901,  Appendix,   p.   365;    Mcore, 
International  Law  Digest,  vol.  7,  p.  666. 
*  The  Charlotte,  5  C.  Robinson,  p.  275. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     79 

presently  discussed,  applicable  alike  to  absolute  and  conditional  con- 
traband, it  would  make  very  little  difference  in  the  ultimate  result 
whether  copper  is  to  be  considered  as  absolute  or  as  conditional 
contraband. 

Section  3.   Trade  With  Neutral  Countries 

The  United  States,  when  belligerent,  has  insisted  upon  the  ulti- 
mate destination  in  determining  the  question  of  contraband.  We 
have  captured  goods  shipped  to  a  neutral  port  before  they  reached 
such  port  upon  a  well-grounded  belief  or  upon  suspicion  that  they 
were  intended  to  be  reshipped  from  the  interposed  neutral  port 
to  the  enemy  country  or  to  the  forces  of  the  enemy,  and  such  cap- 
tures have  been  judicially  sustained  and  the  goods  confiscated. 
Again,  we  have  not  accepted  the  principle  that  delivery  to  specific 
consignees  in  a  neutral  port  settled  the  question  of  ultimate  destina- 
tion. We  have  claimed  and  exercised  the  right  to  determine  from 
the  circumstances  whether  the  ostensible  was  the  real  destination. 
We  have  also  held  that  the  shipment  "to  order"  of  articles  of  con- 
traband to  a  neutral  port,  from  which,  as  a  matter  of  fact,  cargoes 
had  been  transshipped  to  the  enemy,  is  in  itself  sufficient  evidence 
that  the  cargo  is  really  destined  to  the  enemy,  instead  of  to  the 
neutral  port  of  delivery.  We  have  even  held  that  a  cargo  of  con- 
traband shipped  from  one  neutral  port  to  another  will  be  presumed 
to  be  meant  for  the  enemy  if  it  can  be  transported  to  the  enemy 
by  land  conveyance.  The  cases  which  establish  these  points  are 
The  Springbok  '  and  Tlie  Peterlwff.^  It  is  thus  seen  that  the  doctrine 
which  appears  to  bear  harshly  upon  neutrals  at  the  present  time  is 
not  a  concession  to  one  or  the  other  belligerent,  but  was  the  common 
understanding  and  settled  policy  of  the  United  States  when  it  was 
a  belligerent. 

With  this  record  before  us  of  belligerent  pretensions  when  we  were 
belligerent  and  of  neutral  rights  when  we  were  neutral,  it  becomes 
us  to  examine  this  subject  in  a  chastened  spirit  and  with  an  open 
mind,  for  we  cannot  well  deny  to  belligerents  the  rights  which  we 
asserted  and  enforced  when  we  ourselves  were  at  war,  unless  these 
claims  have  been  renounced  by  general  agreement;  and  we  cannot, 
with  even  a  modest  regard  for  consistency,  claim  rights  for  neutrals 
which  as  belligerents  we  refused  to  allow  countries  then  neutral, 
unless  neutrals  have  since  acquired  by  general  agreement  greater 

1 5  Wallace,  p.  1.  2  ihid.,  p.  28. 


80         A  SURVEY  OF  INTERNATIONAL  RELATIONS 

rights  than  we  were  willing  to  concede  and  actually  did  concede  to 
them  in  the  Civil  War.  Yet,  notwithstanding  our  record,  the  United 
States  has  insisted  that  Great  Britain,  in  the  exercise  of  an  acknowl- 
edged belligerent  right,  has  so  extended  the  list  of  absolute  contra- 
band as  to  include  all  articles  which  that  Government  did  not  care 
to  have  Germany  receive,  and  that  Great  Britain  has  included  in  the 
list  of  conditional  contraband  all  articles  which,  by  an  inadvertence 
or  an  oversight,  were  not  included  in  the  list  of  absolute  contraband ; 
so  that,  by  means  of  blockade  and  by  the  application  of  the  doctrine  of 
continuous  voyage  to  blockade  and  to  contraband,  conditional  as  well 
as  absolute.  Great  Britain  has  closed  to  neutrals  all  avenues  of  trade 
to  or  from  Germany  in  all  articles  of  commerce  by  virtue  of  its  con- 
trol of  the  seas. 

Let  us  look  somewhat  into  the  law  on  this  matter  as  laid  down 
by  the  Supreme  Court  of  the  United  States,  which  justifies  some 
of  the  American  practices  while  rejecting  others,  and  which  justifies 
to  a  certain  extent  belligerent  pretensions  advanced  in  the  course  of 
the  present  war. 

The  first  case  to  be  considered  is  that  of  The  PeterJioff,  decided 
by  the  Supreme  Court  in  1866,  after  the  end  of  the  Civil  War. 
The  Peterhoff  was  a  British,  therefore  a  neutral,  vessel,  ostensibly  on 
a  voyage  from  London  to  the  mouth  of  the  Rio  Grande  with  a  cargo 
documented  for  Matamoras,  a  Mexican,  and  therefore  a  neutral  port 
on  the  Mexican  bank  of  the  river,  opposite  the  port  of  Brownsville 
on  the  American  side  of  the  Rio  Grande,  then  in  the  possession  of 
the  Confederate  forces.  On  April  19,  1862,  President  Lincoln  issued 
a  proclamation,  duly  notified  to  foreign  Governments,  to  "blockade 
the  whole  coast  from  the  Chesapeake  Bay  to  the  Rio  Grande"  and 
expressed  the  intention  of  making  the  blockade  effective  "by  posting 
a  competent  force  so  as  to  prevent  the  entrance  or  the  exit  of  vessels." 
The  port  of  Brownsville  was  not  mentioned  in  this  proclamation, 
although  in  that  of  February  18,  1864,  relaxing  the  blockade,  it 
was  recited  as  a  matter  of  fact  that  Brownsville  had  been 
blockaded.  Between  these  two  dates,  to  quote  the  language  of  the 
reporter  in  the  statement  of  the  case,  ''The  Peterhoff,  a  British  built 
and  registered  merchant  screw-propeller,  drawing  sixteen  feet  of 
water,  ...  set  sail  from  London  upon  a  voyage  documented  by 
manifest,  shipping  list,  clearance,  and  other  papers  for  the  port  of 
Matamoras."  Still  further,  according  to  the  statement  of  the  case 
in  the  official  report,  "the  bills  of  lading,  of  which  there  were  a  large 
number,  all  stipulated  for  the  delivery  of  the  goods  shipped  'off  the 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     81 

Rio  Grande,  Gulf  of  Mexico,  for  Matamoras' ;  adding,  that  they  were 
to  be  taken  from  alongside  the  ship,  providing  lighters  can  cross  the 
bar."  It  should  further  be  said,  as  a  large  part  of  the  cargo  was 
undoubtedly  contraband,  that  Mexico  was  at  the  time  of  this  voyage 
at  war  with  France  because  of  the  attempt  on  the  part  of  the  then 
Emperor  of  the  French  to  seat  and  to  maintain  upon  the  throne  of 
Mexico,  created  for  this  purpose,  a  prince  of  the  House  of  Austria. 
The  nature  and  extent  of  the  cargo  and  the  circumstances  under 
which  Tlie  Peterlioff  was  captured  are  thus  stated  in  the  official  report 
of  the  case: 

The  cargo  of  The  Peterlioff,  valued  at  $650,000,  was  a  mis- 
cellaneous cargo,  and  was  shipped  by  different  shippers,  all 
British  subjects  except  one,  Redgate,  hereafter  described.  A  part 
of  it  was  owned  by  the  owner  of  the  vessel. 

Of  its  numerous  packages,  a  certain  number  contained  articles 
useful  for  military  and  naval  purposes  in  time  of  war.  Among 
them,  as  specially  to  be  noted,  were  thirty-six'  cases  of  artillery 
harness  in  sets  for  four  horses,  with  two  riding-saddles  attached 
to  each  set.  The  owner  of  this  artillery  harness  owned  also  a 
portion  of  the  non-military  part  of  the  cargo.  There  were  14,450 
pairs  of  "Blucher"  or  army  boots;  also  "artillery  boots";  5,580 
pairs  of  "Government  regulation  gray  blankets";  95  casks  of 
horseshoes  of  a  large  size,  suitable  for  cavalry  service ;  and  52,000 
horseshoe  nails. 

There  were  also  considerable  amounts  of  iron,  steel,  shovels, 
spades,  blacksmiths'  bellows  and  anvils,  nails,  leather;  and  also 
an  assorted  lot  of  drugs ;  1,000  pounds  of  calomel,  large  amounts 
of  morphine,  265  pounds  of  chloroform,  and  2,640  ounces  of 
quinine.     There  were  also  large  varieties  of  ordinary  goods. 

Owing  to  the  blockade  of  the  whole  Southern  coast,  drugs, 
and  especially  quinine,  were  greatly  needed  in  the  Southern 
States.^ 

Next,  as  to  the  circumstances  of  capture: 

The  Peterhoff  never  reached  the  Rio  Grande.  She  was  cap- 
tured by  the  United  States  vessel  of  war  Vanderbilt  on  suspicion, 
of  intent  to  run  the  blockade  and  of  having  contraband  on  board. 
"When  captured  she  was  in  the  Caribbean  Sea  south  of  Cuba, 
and  in  a  course  to  the  Rio  Grande,  through  the  Gulf  of  Mexico; 
having  some  days  previously  been  boarded,  but  not  captured,  by 
another  Federal  cruiser.   The  Alabama.^ 

Finally,  as  to  the  status  of  Matamoras: 

^  5  Wallace,  pp.  31-32.     The  passages  in  italics  are  so  marked  in  the  official 
report. 

2  Ibid.,  pp.  32-33. 


82  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

During  the  rebellion,  Matamoras,  previously  an  unimportant 
place,  became  suddenly  a  port  of  immense  trade;  a  vast  portion 
of  this  new  trade  having  been,  as  was  matter  of  common  asser- 
tion and  belief,  carried  on  through  Brownsville,  between  mer- 
chants of  neutral  nations  and  the  Southern  States.  And  it  was 
stated  at  the  bar  that  the  Federal  Government  had,  for  reasons 
of  public  policy,  even  granted  several  clearances  from  New  York 
to  Matamoras  during  the  rebellion,  though  only  on  security  being 
given  that  no  supplies  should  be  furnished  to  persons  in  rebellion.' 

It  was  earnestly  contended  in  argument  that  the  vessel  and  cargo 
were  destined  to  the  blockaded  coast.  Mr.  Chief  Justice  Chase,  who 
had  been  Secretary  of  the  Treasury  during  the  war  and  who  had  him- 
self issued  the  Treasury  circular  previously  quoted,  after  stating 
that  the  case  was  very  thoroughly  argued  and  that  it  had  been  atten- 
tively considered,  gave  the  circumstances  as  found  and  then  disposed 
of  this  part  of  the  case  in  the  following  manner: 

The  evidence  in  the  record  satisfies  us  that  the  voyage  of 
The  Peterlwff  was  not  simulated.  She  was  in  the  proper  course 
of  a  voyage  from  London  to  Matamoras.  Her  manifest,  shipping 
list,  clearance,  and  other  custom-house  papers,  all  show  an  in- 
tended voyage  from  the  one  port  to  the  other.  And  the  prepara- 
tory  testimony    fully    corroborates    the    documentary    evidence. 

Nor  have  we  been  able  to  find  anything  in  the  record  which 
fairly  warrants  a  belief  that  the  cargo  had  any  other  direct 
destination.  All  the  bills  of  lading  show  shipments  to  be  delivered 
off  the  mouth  of  the  Rio  Grande,  into  lighters,  for  Matamoras. 
And  this  was  in  the  usual  course  of  trade.  Matamoras  lies  on 
the  Rio  Grande  forty  miles  above  its  mouth;  and  The  Peterhojf's 
draught  of  water  would  not  allow  her  to  enter  the  river.  She 
could  complete  her  voyage,  therefore,  in  no  other  way  than  by 
the  delivery  of  her  cargo  into  lighters  for  conveyance  to  the 
port  of  destination.  It  is  true  that,  by  these  lighters,  some  of 
the  cargo  might  be  conveyed  directly  to  the  blockaded  coast; 
but  there  is  no  evidence  which  warrants  us  in  saying  that  such 
conveyance  was  intended  by  the  master  or  the  shippers. 

We  dismiss,  therefore,  from  consideration,  the  claim,  sug- 
gested rather  than  urged  in  behalf  of  the  government,  that  the 
ship  and  cargo,  both  or  either,  were  destined  for  the  blockaded 
coast.^ 

On  appeal  it  had  been  maintained  in  argument,  to  quote  the  language 
of  the  learned  Chief  Justice : 

(1)    That  trade  with  Matamoras,  at  the  time  of  the  capture, 

*  5  Wallace,  p.  32.  2  md.,  pp.  49-50. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     83 

was  made  unlawful  by  the  blockade  of  the  mouth  of  the  Rio 
Grande;  and  if  not,  then  (2)  that  the  ulterior  destination  of 
the  cargo  was  Texas  and  the  other  States  in  rebellion,  and  that 
this  ulterior  destination  was  in  breach  of  the  blockade/ 

The  first  question,  therefore,  before  the  Court  was  whether  the 
mouth  of  the  Rio  Grande  was  blockaded,  which  involved  the  further 
question  whether  the  United  States  could  in  law  blockade  neutral 
territory,  because  the  Rio  Grande  is  the  dividing  line  between  the 
United  States  and  Mexico  and  part  of  the  Rio  Grande  is  subject  to 
Mexican  jurisdiction.  After  a  careful  consideration  of  this  phase 
of  the  subject,  the  Supreme  Court  came  to  the  conclusion  that  the 
mouth  of  the  Rio  Grande  was  not  blockaded,  and  the  Chief  Justice, 
speaking  for  the  Court,  said  that  **we  are  not  aware  of  any  instance 
in  which  a  belligerent  has  attempted  to  blockade  the  mouth  of  a 
river  or  harbor  occupied  on  one  side  by  neutrals,  or  in  which  such 
a  blockade  has  been  recognized  as  valid  by  any  court  administering 
the  law  of  nations."-  The  Court,  therefore,  had  no  hesitation  in 
holding  "that  the  mouth  of  the  Rio  Grande  was  not  included  in  the 
blockade  of  the  ports  of  the  rebel  States,  and  that  neutral  commerce 
with  Matamoras,  except  in  contraband,  was  entirely  free."' 

The  Court  then  passed  to  the  consideration  of  the  next  question, 
which,  as  stated  by  the  Chief  Justice,  was  "whether  an  ulterior  des- 
tination to  the  rebel  region,  which  we  now  assume  as  proved,  affected 
the  cargo  of  TTie  PeterJioff  with  liability  to  condemnation."*  It  is 
evident  that  the  question  of  blockade  can  be  eliminated  from  the 
case,  inasmuch  as  the  Mexican  portion  of  the  Rio  Grande  could  not  be 
blockaded  and  the  Court  found  that  the  vessel  and  cargo  were  des- 
tined to  the  Mexican  port  of  Matamoras.  It  was  contended  that  the 
consequences  of  ulterior  destination  to  a  belligerent  country  by  inland 
conveyance  from  a  neutral  port  were  the  same  as  they  would  have 
been  under  a  blockade  of  Matamoras.  On  this  point  the  Court  had 
no  doubt,  as  the  contention  had  been  advanced  in  argument  and  had 
been  rejected  by  Sir  William  Scott  in  the  cases  of  The  Stert  (4  C.  Rob- 
inson, p.  65),  and  of  TJie  Ocean  (3  C.  Robinson,  p.  297),  decided  in 
1801.  As  these  questions  are  involved  in  the  attempt  of  Great  Britain 
to  prevent  neutral  commerce  finding  its  way  through  Holland  or  other 
neutral  countries  to  Germany,  it  is  advisable  to  quote  the  judgment 
of  the  Supreme  Court  on  this  point : 

During  the  blockade  of  Holland  in  1799,  goods  belonging  to 
^5  Wallace,  p.  50.  s  Ibid.,  p.  52.  *  lUd.,  p.  54. 


84  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Prussian  subjects  were  shipped  from  Edam,  near  Amsterdam, 
by  inland  navigation  to  Emden,  in  Hanover,  for  transshipment 
to  London.  Prussia  and  Hanover  were  neutral.  The  goods  were 
captured  on  the  voyage  from  Emden,  and  the  cause  {The  Stert, 
4  C.  Robinson,  p.  65)  came  before  the  British  Court  of  Admir- 
alty in  1801.  It  was  held  that  the  blockade  did  not  affect  the 
trade  of  Holland  carried  on  with  neutrals  by  means  of  inland 
navigation.  "It  was,"  said  Sir  William  Scott,  "a  mere  mari- 
time blockade  effected  by  force  operating  only  at  sea."  He 
admitted  that  such  trade  would  defeat,  partially  at  least,  the 
object  of  the  blockade,  namely,  to  cripple  the  trade  of  Holland, 
but  observed,  "If  that  is  the  consequence,  all  that  can  be  said 
is  that  it  is  an  unavoidable  consequence.  It  must  be  imputed 
to  the  nature  of  the  thing  which  will  not  admit  a  remedy  of  this 
species.  The  court  cannot  on  that  ground  take  upon  itself  to  say 
that  a  legal  blockade  exists  where  no  actual  blockade  can  be 
applied.  ...  It  must  be  presumed  that  this  was  foreseen  by 
the  blockading  state,  which,  nevertheless,  thought  proper  to 
impose  it  to  the  extent  to  which  it  was  practicable." 

The  same  principle  governed  the  decision  in  the  case  of 
The  Ocean  (3  C.  Robinson,  p.  297),  made  also  in  1801.  At  the 
time  of  her  voyage  Amsterdam  was  blockaded,  but  the  blockade 
had  not  been  extended  to  the  other  ports  of  Holland.  Her  cargo 
consisted  partly  or  wholly  of  goods  ordered  by  American  mer- 
chants from  Amsterdam,  and  sent  thence  by  inland  conveyance 
to  Rotterdam,  and  there  shipped  to  America.  It  was  held  that 
the  conveyance  from  Amsterdam  to  Rotterdam,  being  inland,  was 
not  affected  by  the  blockade,  and  the  goods,  which  had  been  cap- 
tured, were  restored.^ 

On  another  point,  also  involved  in  the  present  practice  of  Great 
Britain,  the  Supreme  Court  said,  by  the  mouth  of  its  Chief  Justice: 

These  were  cases  of  trade  from  a  blockaded  to  a  neutral  coun- 
try, by  means  of  inland  navigation,  to  a  neutral  port  or  a  port 
not  blockaded.  The  same  principle  was  applied  to  trade  from  a 
neutral  to  a  blockaded  country  by  inland  conveyance  from  the  neu- 
tral port  of  primary  destination  to  the  blockaded  port  of  ulterior 
destination  in  the  case  of  The  Jonge  Pieter  (4  Robinson,  p.  79), 
adjudged  in  1801.  Goods  belonging  to  neutrals  going  from 
London  to  Emden,  with  ulterior  destination  by  land  or  an 
interior  canal  navigation  to  Amsterdam,  were  held  not  liable 
to  seizure  for  violation  of  the  blockade  of  that  port.  The  par- 
ticular goods  in  that  instance  were  condemned  upon  evidence 
that  they  did  not  in  fact  belong  to  neutrals,  but  to  British  mer- 
chants, engaged  in  unlawful  trade  with  the  enemy ;  but  the  prin- 
ciple just  stated  was  explicitly  affirmed. 

1  5  Wallace,  pp.  54-55. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      85 

These  cases  fully  recognize  the  lawfulness  of  neutral  trade  to 
or  from  a  blockaded  country  by  inland  navigation  or  transpor- 
tation. They  assert  principles  without  disregard  of  which  it  is 
impossible  to  hold  that  inland  trade  from  Matamoras,  in  Mexico, 
to  Brownsville  or  Galveston,  in  Texas,  or  from  Brownsville  or 
Galveston  to  Matamoras,  was  affected  by  the  blockade  of  the 
Texan  coast. 

And  the  general  doctrines  of  international  law  lead  irresist- 
ibly to  the  same  conclusion.  We  know  of  but  two  exceptions 
to  the  rule  of  free  trade  by  neutrals  with  belligerents:  the  first 
is  that  there  must  be  no  violation  of  blockade  or  siege ;  and  the 
second,  that  there  must  be  no  conveyance  of  contraband  to  either 
belligerent.' 

And  the  Court  concluded  its  judgment  on  this  part  of  the  case  by 
holding  "that  trade,  between  London  and  Matamoras,  even  with 
intent  to  supply,  from  Matamoras,  goods  to  Texas,  violated  no  block- 
ade, and  cannot  be  declared  unlawful. ' '  ^ 

The  question  next  arises  whether  articles  declared  by  a  belligerent 
to  be  contraband  can  legally  be  seized  if  they  are  in  fact  destined 
to  a  port  of  the  enemy  although  a  neutral  port  is  interposed  and  they 
are  deposited  at  this  neutral  port  in  order  to  be  conveyed  by  water 
or  by  land  to  the  enemy.  In  other  words,  is  the  voyage  in  fact  con- 
tinuous in  law?  That  a  voyage,  under  such  circumstances,  can  be 
regarded  as  continuous  and  therefore  considered  as  a  voyage  from 
a  neutral  to  an  enemy  port,  notwithstanding  the  interposition 
of  a  neutral  port  or  territory,  was  squarely  held  in  the  case  of 
The  Bermuda,  in  which  Mr.  Chief  Justice  Chase,  speaking  for  the 
Supreme  Court,  said: 

It  makes  no  difference  whether  the  destination  to  the  rebel 
port  was  ulterior  or  direct ;  nor  could  the  question  of  destination 
be  affected  by  transshipment  at  Nassau,  if  transshipment  was 
intended,  for  that  could  not  break  the  continuity  of  transpor- 
tation of  the  cargo. 

The  interposition  of  a  neutral  port  between  neutral  depar- 
ture and  belligerent  destination  has  always  been  a  favorite 
resort  of  contraband  carriers  and  blockade-runners.  But  it 
never  avails  them  when  the  ultimate  destination  is  ascertained. 
A  transportation  from  one  point  to  another  remains  continuous, 
so  long  as  intent  remains  unchanged,  no  matter  what  stoppages 
or  transshipments  intervene. 

This  was  distinctly  declared  by  this  court  in  1855  {Jeckerv. 
Montgomery,  18  Howard,  p.  114)  in  reference  to  American  ship- 
ments to  Mexican  ports  during  the  war  of  this  country  with 

^5  Wallace,  pp.  55-56.  ^  2  Ibid.,  p.  57. 


86  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Mexico,  as  follows:  "Attempts  have  been  made  to  evade  the 
rule  of  public  law  by  the  interposition  of  a  neutral  port  between 
the  shipment  from  the  belligerent  port  and  the  ultimate  destina- 
tion in  the  enemy's  country;  but  in  all  such  cases  the  goods  have 
been  condemned  as  having  been  taken  in  a  course  of  commerce 
rendering  them  liable  to  confiscation." 

The  same  principle  is  equally  applicable  to  the  conveyance 
of  contraband  to  belligerents;  and  the  vessel  which,  with  the 
consent  of  the  owner,  is  so  employed  in  the  first  stage  of  a  con- 
tinuous transportation,  is  equally  liable  to  capture  and  confisca- 
tion with  the  vessel  which  is  employed  in  the  last,  if  the  employ- 
ment is  such  as  to  make  either  so  liable.' 

Taking  up  the  application  of  the  doctrine  of  continuous  voyage 
to  the  cargo,  the  learned  Chief  Justice,  upon  the  authority  of  British 
precedent,  held  that  it  was  well  established.  Within  the  compass  of 
a  paragraph  he  traces  the  doctrine  which,  like  so  much  of  the  Ameri- 
can law,  is  of  British  origin.     Thus: 

At  first  Sir  William  Scott  held  that  the  landing  and  ware- 
housing of  the  goods  and  the  payment  of  the  duties  on  importa- 
tion was  a  sufficient  test  of  the  termination  of  the  original  voyage ; 
and  that  a  subsequent  exportation  of  them  to  a  belligerent  port 
was  lawful  {Tlie  Polly,  2  C.  Robinson,  p.  369).  But  in  a  later 
case,  in  an  elaborate  judgment.  Sir  William  Grant  {Tlie  William, 
5  C.  Robinson,  p.  395;  1  Kent's  Commentaries,  p.  84,  note)  re- 
viewed all  the  cases,  and  established  the  rule,  which  has  never 
been  shaken,  that  even  the  landing  of  goods  and  payment  of 
duties  does  not  interrupt  the  continuity  of  the  voyage  of  the 
cargo,  unless  there  be  an  honest  intention  to  bring  them  into  the 
common  stock  of  the  country.  If  there  be  an  intention,  either 
formed  at  the  time  of  original  shipment,  or  afterwards,  to  send 
the  goods  forward  to  an  unlawful  destination,  the  continuity  of 
the  voyage  will  not  be  broken,  as  to  the  cargo,  by  any  transac- 
tions at  the  intermediate  port.' 

Fortified  by  these  decisions  the  Chief  Justice  thus  concluded,  in  a 
passage  which  is  a  classic  in  American  jurisprudence: 

There  seems  to  be  no  reason  why  this  reasonable  and  settled 
doctrine  should  not  be  applied  to  each  ship  where  several  are 
engaged  successively  in  one  transaction,  namely,  the  conveyance 
of  a  contraband  cargo  to  a  belligerent.  The  question  of  liability 
must  depend  on  the  good  or  bad  faith  of  the  owners  of  the  ships. 
If  a  part  of  the  voyage  is  lawful,  and  the  owners  of  the  ship 
conveying  the  cargo  in  that  part  are  ignorant  of  the  ulterior 

*3  Wallace,  pp.  553-554. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY       87 

destination,  and  do  not  hire  their  ship  with  a  view  to  it,  the 
ship  cannot  be  liable ;  but  if  the  ulterior  destination  is  the  known 
inducement  to  the  partial  voyage,  and  the  ship  is  engaged  in  the 
latter  with  a  view  to  the  former,  then  whatever  liability  may 
attach  to  the  final  voyage,  must  attach  to  the  earlier,  undertaken 
with  the  same  cargo  and  in  continuity  of  its  conveyance.  Suc- 
cessive voyages,  connected  by  a  common  plan  and  a  common 
object,  form  a  plural  unit.  They  are  links  of  the  same  chain, 
each  identical  in  description  with  every  other,  and  each  essen- 
tial to  the  continuous  whole.  The  ships  are  planks  of  the  same 
bridge,  all  of  the  same  kind,  and  all  necessary  to  the  convenient 
passage  of  persons  and  property  from  one  end  to  the  other.'- 

"We  are  now  in  a  position  to  consider  a  shipment  of  contraband 
to  Matamoras  when  vessel  and  cargo  were  destined  to  and  actually 
delivered  at  Matamoras,  but  when  the  nature  of  the  cargo  and  the 
nearness  and  convenience  of  Matamoras  to  Confederate  territory  sug- 
gested that  the  cargo  was  meant  to  be  transported  from  Matamoras 
to  Brownsville,  a  port  in  enemy  territory.  On  reaching  his  con- 
clusion, Mr.  Chief  Justice  Chase,  speaking  for  the  Court,  used  the 
following  language: 

Trade  with  a  neutral  port  in  immediate  proximity  to  the 
territory  of  one  belligerent,  is  certainly  very  inconvenient  to 
the  other.  Such  trade,  with  unrestricted  inland  commerce  be- 
tween such  a  port  and  the  enemy's  territory,  impairs  undoubt- 
edly and  very  seriously  impairs  the  value  of  a  blockade  of  the 
enemy's  coast.  But  in  cases  such  as  that  now  in  judgment,  we 
administer  the  public  law  of  nations,  and  are  not  at  liberty  to 
inquire  what  is  for  the  particular  advantage  or  disadvantage  of 
our  own  or  another  country.  We  must  follow  the  lights  of  rea- 
son and  the  lessons  of  the  masters  of  international  jurisprudence. 

.  .  .  we  think  it  a  fair  conclusion  from  the  whole  evidence 
that  the  cargo  was  to  be  disposed  of  in  Mexico  or  Texas  as  might 
be  found  most  convenient  and  profitable  to  the  owners  and  con- 
signees, who  were  either  at  Matamoras  or  on  board  the  ship.^ 

After  saying  that  ''destination  in  this  case  becomes  specially  impor- 
tant only  in  connection  with  the  question  of  contraband, ' '  the  learned 
Chief  Justice  puts  and  answers  the  question  "Was  any  portion  of 
the  cargo  of  Tlie  Peterlioff  contraband?"  And,  as  in  the  case  of  TJie 
Bermuda,  the  language  of  the  Chief  Justice  on  this  point,  in  accord- 
ance with  the  language  of  the  founder  of  international  law,  is  a 
classic  passage  in  American  jurisprudence: 

'  3  Wallace,  pp.  554-555.  2  5  Wallace,  pp.  57-58. 


88    A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  classification  of  goods  as  contraband  or  not  contraband 
has  much  perplexed  text  writers  and  jurists.  A  strictly  accur- 
ate and  satisfactory  classification  is  perhaps  impracticable ;  but 
that  which  is  best  supported  by  American  and  English  decisions 
may  be  said  to  divide  all  merchandise  into  three  classes.  Of  these 
classes,  the  first  consists  of  articles  manufactured  and  primarily 
and  ordinarily  used  for  military  purposes  in  time  of  war;  the 
second,  of  articles  which  may  be  and  are  used  for  purposes  of 
war  or  peace,  according  to  circumstances;  and  the  third,  of 
articles  exclusively  used  for  peaceful  purposes  (Lawrence's 
Wheaton,  pp.  772-776.  note ;  the  Commercen,  1  Wheaton,  p.  382 ; 
Dana's  Wheaton,  p.  629,  note ;  Parsons'  Maritime  Law,  pp.  93-94). 
Merchandise  of  the  first  class,  destined  to  a  belligerent  country 
or  places  occupied  by  the  army  or  navy  of  a  belligerent,  is  always 
contraband ;  merchandise  of  the  second  class  is  contraband  only 
when  actually  destined  to  the  military  or  naval  use  of  a  belliger- 
ent ;  while  merchandise  of  the  third  class  is  not  contraband  at  all, 
though  liable  to  seizure  and  condemnation  for  violation  of  block- 
ade or  siege.' 

The  Chief  Justice  then  proceeds  to  examine  the  cargo  of 
The  Peterliojf,  saying  that  a  considerable  portion  thereof  was  of  the 
third  class,  that  is  to  say,  innocent,  and  need  not  be  further  referred 
to  because,  in  the  opinion  of  the  Supreme  Court  and  in  the  opinion 
also  of  publicists,  innocent  articles  are  not  and  should  not  be  treated 
as  contraband.  Another  portion  was  of  the  second  class,  that  is  to 
say,  useful  for  war  or  peace,  and  only  could  be  treated  as  contraband 
if  actually  destined  to  the  military  forces.  A  final  portion  was,  in 
the  opinion  of  the  Court,  of  the  first  class,  or,  as  Mr.  Chief  Justice 
Chase  said,  "if  of  the  second  kind,  destined  directly  to  the  rebel 
military  service."  This  portion  of  the  cargo  was  therefore  con- 
demned.    The  language  of  the  Court  on  this  point  is: 

This  portion  of  the  cargo  consisted  of  the  cases  of  artillery 
harness,  and  of  articles  described  in  the  invoices  as  "men's  army 
bluchers,"  "artillery  boots,"  and  "government  regulation  gray 
blankets."  These  goods  come  fairly  under  the  description  of 
goods  primarily  and  ordinarily  used  for  military  purposes  in 
time  of  war.  They  make  part  of  the  necessary  equipment  of 
an  army.^ 

The  Chief  Justice,  however,  was  very  careful  to  point  out  that  even 
absolute  contraband  could  not  be  captured  if  it  were  really  intended 
for  sale  in  Matamoras.    Thus: 

'  5  Wallace,  p.  58.  2  Ibid.,  pp.  58-59. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY       89 

It  is  true  that  even  these  goods,  if  really  intended  for  sale 
in  the  market  of  Matamoras,  would  be  free  of  liability;  for 
contraband  may  be  transported  by  neutrals  to  a  neutral  port, 
if  intended  to  make  part  of  its  general  stock  in  trade/ 

After  laying  down  this  rule  of  law,  the  Chief  Justice  stated  that  the 
circumstances  convinced  the  Court,  in  the  absence  of  direct  testimony, 
that  this  portion  was  really  meant  for  Brownsville.     Thus: 

But  there  is  nothing  in  the  case  which  tends  to  convince  us 
that  such  was  their  real  destination,  while  all  the  circumstances 
indicate  that  these  articles,  at  least,  were  destined  for  the  use  of 
the  rebel  forces  then  occupying  Brownsville,  and  other  places 
in  the  vicinity.' 

And  in  a  final  passage  to  be  quoted,  the  Chief  Justice,  speaking  in 
behalf  of  the  Court,  used  language  as  applicable  to  the  present  as  it 
was  applicable  to  the  Civil  War.    Thus: 

And  contraband  merchandise  is  subject  to  a  different  rule 
in  respect  to  ulterior  destination  than  that  which  applies  to  mer- 
chandise not  contraband.  The  latter  is  liable  to  capture  only 
when  a  violation  of  blockade  is  intended;  the  former  when  des- 
tined to  the  hostile  country,  or  to  the  actual  military  or  naval 
use  of  the  enemy,  whether  blockaded  or  not.  The  trade  of  neu- 
trals with  belligerents  in  articles  not  contraband  is  absolutely 
free  unless  interrupted  by  blockade ;  the  conveyance  by  neutrals 
to  belligerents  of  contraband  articles  is  always  unlawful,  and 
such  articles  may  always  be  seized  during  transit  by  sea.  Hence, 
while  articles,  not  contraband,  might  be  sent  to  Matamoras  and 
beyond  to  the  rebel  region,  where  the  communications  were  not 
interrupted  by  blockade,  articles  of  a  contraband  character,  des- 
tined in  fact  to  a  State  in  rebellion,  or  for  the  use  of  the  rebel 
military  forces,  were  liable  to  capture  though  primarily  destined 
to  Matamoras.' 

The  case  of  The  Springbok,  to  which  reference  has  already  been 
made,  rendered  it  difficult  if  not  impossible  for  the  United  States  to 
protest  the  seizures  of  articles  destined  to  a  neutral  port  and  con- 
signed "to  order"  instead  of  being  sent  to  specific  consignees  residing 
in  the  neutral  port.  After  having  "looked  into  all  the  evidence" 
and  after  having  approved  the  rule  of  ultimate  destination  laid  down 
in  TJie  Bermuda,  the  Court  stated  the  facts  of  the  case,  sufficiently 
for  present  purposes,  in  the  following  passage  from  the  opinion  of 
Mr.  Chief  Justice  Chase: 

'  5  Wallace,  p.  59. 


90  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

We  think  that  The  Springbok  fairly  comes  within  this  rule. 
Her  papers  were  re^lar,  and  they  all  showed  that  the  voyage 
on  which  she  was  captured  was  from  London  to  Nassau,  both 
neutral  ports  within  the  definitions  of  neutrality  furnished  by 
the  international  law.  The  papers,  too,  were  all  genuine,  and 
there  was  no  concealment  of  any  of  them  and  no  spoliation.  Her 
owners  were  neutrals,  and  do  not  appear  to  have  had  any  interest 
in  the  cargo;  and  there  is  no  sufficient  proof  that  they  had  any 
knowledge  of  its  alleged  unlawful  destination.' 

Yet,  notwithstanding  the  facts  as  set  forth  by  the  Chief  Justice,  the 
Court  inferred  the  ultimate  destination,  apparently  because  of  the 
consignment  to  order  instead  of  to  specifically  named  consignees. 
Thus: 

We  are  next  to  ascertain  the  real  destination  of  the  cargo. 
,  .  .  If  the  real  intention  of  the  owners  was  that  the  cargo 
should  be  landed  at  Nassau  and  incorporated  by  real  sale  into 
the  common  stock  of  the  island,  it  must  be  restored,  notwith- 
standing this  misconduct.^ 

The  Court  then  proceeds  to  ask  and  to  answer  the  question,  "What, 
then,  was  this  real  intention  ? ' '    Thus : 

That  some  other  destination  than  Nassau  was  intended  may 
be  inferred,  from  the  fact  that  the  consignment,  shown  by  the 
bills  of  lading  and  the  manifest,  was  to  order  or  assigns.  Under 
the  circumstances  of  this  trade,  already  mentioned,  such  a  con- 
signment must  be  taken  as  a  negation  that  any  sale  had  been 
made  to  any  one  at  Nassau.  It  must  also  be  taken  as  a  negation 
that  any  such  sale  was  intended  to  be  made  there ;  for  had  such 
sale  been  intended,  it  is  most  likely  that  the  goods  would  have 
been  consigned  for  that  purpose  to  some  established  house  named 
in  the  bills  of  lading.^ 

Notwithstanding  these  cases  and  the  claims  of  the  United  States 
when  belligerent,  the  Department  of  State  insisted  that  Great  Britain 
should  conform  its  actions  strictly  to  the  requirements  of  "inter- 
national law,"  although  it  was  not  in  a  position  to  assume  an  atti- 
tude inconsistent  with  the  decisions  of  the  Supreme  Court.  The 
Government  even  went  so  far  as  to  protest  seizures  of  cotton,  because 
at  that  time  Great  Britain  had  not  added  cotton  to  its  list  of  con- 
traband, although  in  Secretary  Hay's  statement,  previously  quoted, 
cotton  was  included  among  the  materials  from  which  ammunition  is 
made,  and  in  the  Treasury  circular,  likewise  already  quoted,  materials 
entering  into  the  manufacture  of  ammunition  were  declared  con- 
traband. 

^5  Wallace,  p.  21.  2  Ibid.,  p.  25.  'Ibid.,  pp.  25-26. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     91 

Great  Britain  was,  however,  much  embarrassed  in  the  matter  of 
cotton,  because,  in  the  Russo-Japanese  War,  Russia  had  placed  cotton 
upon  the  contraband  list.  Great  Britain  protested  and,  owing  to  the 
protest  of  Great  Britain,  Russia  removed  it  from  the  list  of  contra- 
band. And  it  may  be  said  in  passing  that  the  person,  then  a  Secre- 
tary of  Embassy,  who  delivered  the  protest  of  the  British  Government 
on  that  occasion,  is  the  present  British  Ambassador  to  the  United 
States.  Great  Britain,  therefore,  made  arrangements  with  the  pro- 
ducers of  cotton  in  the  United  States,  purchasing  their  cotton  and 
guaranteeing  them  against  loss.  Later,  on  August  23,  1915,  Great 
Britain  very  properly  placed  cotton  upon  the  contraband  list,  as  it 
entered  into  the  manufacture  of  explosives,  and  the  Imperial  German 
Government  has  since  likewise  placed  cotton  upon  its  lists  of  abso- 
lute contraband.' 

Section  4.   Trade  With  Germany 

Leaving  out  of  consideration  the  additions  to  the  lists  of  abso- 
lute and  conditional  contraband,  admittedly  within  the  power  of 
every  Government  to  make,  although  it  may  abuse  its  right, — and,  in 
the  opinion  of  its  enemy  and  of  the  neutral,  every  belligerent  does 
abuse  the  right — the  question  of  destination,  of  importance  in  condi- 
tional contraband,  becomes  doubly  important  because  of  the  German 
contention  that  Great  Britain  was  attempting  to  starve  the  non- 
combatant  population  of  Germany  by  forbidding  the  entrance  of 
foodstuffs  to  Germany,  on  the  plea  that  upon  entrance  they  would  be 
seized  by  the  German  authorities  and  devoted  to  the  use  of  the  armed 
forces  instead  of  the  civilian  population. 

That  a  nation  has  a  right  to  starve  its  enemy  by  means  of  a  block- 
ade is  admitted  by  the  law  and  practice  of  nations ;  that  it  may  do  so 
by  intercepting  foodstuffs  destined  to  the  enemy  was  the  conten- 
tion and  practice  of  Great  Britain.  Within  the  limits  of  consent 
evidenced  by  the  law  and  practice  of  Nations  this  is  so ;  beyond  this 
it  was  illegal,  both  as  to  Great  Britain's  enemy  and  neutrals.  On 
January  25,  1915,  a  decree  was  passed  by  the  Imperial  German  Fed- 
eral Council,  of  which  Article  45,  in  the  opinion  of  the  British  Gov- 
ernment, made  **all  grain  and  flour  imported  into  Germany"  after 
the  31st  of  January  "deliverable  only  to  certain  organizations  under 
direct  Government  control  or  to  municipal  authorities. ' '  ^ 

1  Reichsgesetzllatt,  July  22,  1916. 

2  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  174. 


92  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Tlie  Wilhehnina,  an  American  ship  carrying  a  cargo  of  wheat  and 
bran  destined  to  Germany,  was  seized  by  the  British  authorities. 
Admitting  tliat  foodstuffs  were  conditional  contraband,  delivery  to 
German  authorities  would  be  delivery  to  the  German  Government 
as  distinguished  from  delivery  to  the  civilian  population,  and  hence 
would  subject  the  cargo  to  seizure  and  confiscation.  The  British 
Government  said  in  its  note  of  February  19,  1915,  that  the  des- 
tination to  Hamburg  was  one  of  the  reasons  causing  the  seizure  of 
The  Wilhelmina.  The  German  Government  specifically  informed  the 
United  States,  as  appears  from  Secretary  Bryan's  note  to  Great 
Britain,  dated  February  15,  1915,  that  "a  part  of  the  order  of  the 
German  Federal  Council  relating  to  food  products  has  now  been 
rescinded,"  and  gave  a  formal  assurance  "that  all  goods  imported 
into  Germany  from  the  United  States  directly  or  indirectly,  which 
belong  to  the  class  of  relative  contraband,  such  as  foodstuffs,  will 
not  be  used  by  the  German  army  or  navy  or  by  Government  authori- 
ties, but  will  be  left  to  the  free  consumption  of  the  German  civilian 
population,  excluding  all  Government  purveyors. ' ' ' 

This  interpretation  and  this  reply  took  the  wind  out  of  the 
British  sails.  There  were,  however,  other  reasons,  among  which  were 
the  bombardment  of  the  "open  towns"  of  Yarmouth,  Scarborough, 
and  "Whitby,  and  the  seizure  by  German  cruisers  of  neutral  vessels  des- 
tined to  English  ports  carrying  cargoes  declared  by  Germany  to  be 
conditional  contraband,  a  practice  which  could  only  be  justified, 
according  to  Great  Britain,  if  "the  cargo  could  have  been  proved  to 
be  destined  for  the  British  Government  or  armed  forces  and  if  a 
presumption  to  this  effect  had  been  established  owing  to  Dublin  or 
Belfast  being  considered  a  fortified  place  or  a  base  for  the  armed 
forces."^  The  British  Government  admitted  that  foodstuffs  were 
only  liable  to  capture  if  destined  to  the  enemy  forces  or  Government, 
according  to  the  general  principle  that  the  civil  populations  of  the 
countries  at  war  "are  not  to  be  exposed  to  the  treatment  rightly  re- 
served for  combatants, ' '  which  distinction,  as  the  British  Government 
maintained,  ' '  has  to  all  intents  and  purposes  been  swept  away  by  the 
novel  doctrines  proclaimed  and  acted  upon  by  the  German  Govern- 
ment." After  calling  attention  to  the  fact  that  British  merchant 
vessels  had  been  torpedoed  at  sight  "without  any  attempt  being  made 
to  give  warning  to  the  crew  or  any  opportunity  being  given  to  save 
their  lives,"  that  "a  torpedo  has  been  fired  against  a  British  hos- 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  175. 
2  Ibid.,  pp.  176-177. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     93 

pital  ship  in  daylight," '  and  that  neutral  ships  would,  in  the  future, 
be  treated  by  Germany  the  same  as  British  merchant  ships,  the 
British  Government  made  the  following  statement: 

Faced  with  this  situation,  His  Majesty's  Government  con- 
sider it  would  be  altogether  unreasonable  that  Great  Britain  and 
her  allies  should  be  expected  to  remain  indefinitely  bound,  to 
their  grave  detriment,  by  rules  and  principles  of  which  they 
recognize  the  justice  if  impartially  observed  as  between  belliger- 
ents, but  which  are  at  the  present  moment  openly  set  at  defiance 
by  their  enemy. 

If,  therefore.  His  Majesty's  Government  should  hereafter  feel 
constrained  to  declare  foodstuffs  absolute  contraband,  or  to  take 
other  measures  for  interfering  with  German  trade,  by  way  of 
reprisals,  they  confidently  expect  that  such  action  will  not  be 
challenged  on  the  part  of  neutral  states  by  appeals  to  laws  and 
usages  of  war  whose  validity  rests  on  their  forming  an  integral 
part  of  that  system  of  international  doctrine  which  as  a  whole 
their  enemy  frankly  boasts  the  liberty  and  intention  to  disregard, 
so  long  as  such  neutral  states  cannot  compel  the  German  Gov- 
ernment to  abandon  methods  of  warfare  which  have  not  in  recent 
history  been  regarded  as  having  the  sanction  of  either  law  or 
humanity.^ 

Acting  upon  this  reservation  of  a  right,  Great  Britain,  on  March  15, 
1915,  issued  an  Order  in  Council  subjecting  to  seizure  and  detention, 
if  not  to  confiscation,  all  commodities  destined  to  a  neutral  coun- 
try which  might  be  transshipped  to  Germany,  unless  the  vessel 
carrying  such  commodities  touched  at  a  British  port  and  received 
a  permit  to  land  its  cargo  at  its  neutral  destination,  and  subjecting 
to  seizure  and  detention,  if  not  confiscation,  all  commodities  exported 
to  the  outer  world  through  a  neutral  country  contiguous  to  Germany, 
unless  Great  Britain  should  be  minded  to  allow  the  vessel  and  cargo 
to  pass,  notwithstanding  the  provisions  of  the  Declaration  of  Paris, 
to  which  Great  Britain  and  Prussia  were  parties,  that  "the  neutral 
flag  covers  enemy's  goods,  with  the  exception  of  contraband  of  war," 
and  that  ''neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  enemy's  flag." 

In  the  note  of  the  Imperial  German  Secretary  of  State,  dated 
March  1,  1915,  in  reply  to  Secretary  Bryan's  proposal  to  assure  the 
delivery  of  foodstuffs  to  the  noncombatant  populations  of  the  coun- 
tries at  war,  it  was  said  that  ' '  The  German  Government  would,  there- 

^  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.  177-178. 
Uhid.,    p.  178. 


94         A  SURVEY  OF  INTERNATIONAL  RELATIONS 

fore,  be  willing  to  make  the  declarations  of  the  nature  provided  in  the 
American  note  so  that  the  use  of  the  imported  food  and  foodstuffs 
solely  by  the  noneombatant  population  would  be  guaranteed. ' ' '  This 
acceptance,  however,  was  not  absolute,  as  Germany  wished  raw 
materials  to  be  subjected  to  the  same  treatment,  the  Imperial  Ger- 
man note  saying  on  this  point  that: 

To  that  end  the  enemy  Governments  would  have  to  permit 
the  free  entry  into  Germany  of  the  raw  material  mentioned  in 
the  free  list  of  the  Declaration  of  London  and  to  treat  materials 
included  in  the  list  of  conditional  contraband  according  to  the 
same  principles  as  food  and  foodstuffs.' 

Great  Britain  refused,  because  of  the  alleged  illegal  conduct  of 
Germany,  to  accept  the  American  propositions.  In  a  note  of  April  4, 
1915,  the  Imperial  German  Ambassador  to  Washington  recounted  the 
illegal  acts  of  Great  Britain  and  used  them  as  a  justification  for 
acts  of  the  Imperial  German  Government  inconsistent  with  the  law 
of  nations,  as  hitherto  understood  and  practiced,  and  in  no  uncertain 
terms  made  the  United  States  a  party  to  the  illegal  conduct  of 
Great  Britain  because  the  United  States  as  a  neutral  did  not  compel 
Great  Britain  to  mend  its  ways. 

In  connection  with  the  seizure  of  The  WiUielmina,  the  Imperial 
German  Government  showed  itself  solicitous  of  the  right  of  the  Ameri- 
can shipper,  when  the  cargo  was  destined  to  Germany — although  the 
destruction  of  668  neutral  vessels  other  than  those  of  the  United 
States  from  the  outbreak  of  the  war  on  August  1,  1914,  to  April  1, 
1917,  discloses  the  consideration  neutrals  received  at  the  hands  of  the 
German  submarine  when  it  was  not  in  the  interest  of  the  Imperial 
Government  to  allow  the  neutral  vessel  to  go  its  way  unmolested. 
Thus: 

The  various  British  Orders  in  Council  have  one-sidedly  modi- 
fied the  generally  recognized  principles  of  international  law  in 
a  way  which  arbitrarily  stops  the  commerce  of  neutral  nations 
with  Germany.  Even  before  the  last  British  Order  in  Council, 
the  shipment  of  conditional  contraband,  especially  food  supplies., 
to  Germany  was  practically  impossible.  Prior  to  the  protest  sent 
by  the  American  to  the  British  Government  on  December  28 
last,  such  a  shipment  did  not  actually  take  place  in  a  single 
case.  Even  after  this  protest  the  Imperial  Embassy  knows  of 
only  a  single  case  in  which  an  American  shipper  has  ventured 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  100. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      95 

to  make  such  a  shipment  for  the  purpose  of  legitimate  sale  to 
Germany.  Both  ship  and  cargo  were  immediately  seized  by  the 
English  and  are  being  held  in  an  English  port  under  the  pre- 
text of  an  order  of  the  German  Federal  Council  (Bundesrat) 
regarding  the  grain  trade,  although  this  resolution  of  the  Fed- 
eral Council  relates  exclusively  to  grain  and  flour,  and  not  to 
other  foodstuffs,  besides  making  an  express  exception  with  respect 
to  imported  foodstuffs,  and  although  the  German  Government 
gave  the  American  Government  an  assurance,  and  proposed  a 
special  organization  whereby  the  exclusive  consumption  by  the 
civilian  population  is  absolutely  guaranteed. 

Under  the  circumstances  the  seizure  of  the  American  ship 
was  inadmissible  according  to  recognized  principles  of  inter- 
national law.  Nevertheless  the  United  States  Government  has 
not  to  date  secured  the  release  of  the  ship  and  cargo,  and  has 
not,  after  a  duration  of  the  war  of  eight  months,  succeeded  in 
protecting  its  lawful  trade  with  Germany. 

Such  a  long  delay,  especially  in  matters  of  food  supply,  is 
equivalent  to  an  entire  denial. 

The  Imperial  Embassy  must  therefore  assume  that  the  United 
States  Government  acquiesces  in  the  violations  of  international 
law  by  Great  Britain.^ 

By  way  of  comment  upon  this  remarkable  statement  it  may  be  said 
that,  under  international  law  and  the  practice  of  Nations,  the  United 
States  does  not  owe  a  duty  to  Germany  to  supply  it  with  food,  and 
that  the  United  States  not  only  protested  against  the  seizure  of  The 
WilJielmina,  but  that  the  British  Government  honored  the  American 
protest  and  settled  the  case  to  its  satisfaction.  Thus,  in  a  note  of 
April  8,  1915,  within  three  days  of  the  note  of  the  Imperial  German 
Ambassador,  the  British  Government  said: 

His  Majesty's  Government  share  the  desire  of  the  United 
States  Government  for  an  immediate  settlement  of  the  case  of 
The  Wilhelmina.  This  American  ship  laden  with  foodstuffs  left 
New  York  for  Hamburg  on  January  22nd.  She  called  at  Fal- 
mouth of  her  own  accord  on  February  9th  and  her  cargo  was 
detained  as  prize  on  February  11th.  The  writ  instituting  prize 
court  proceedings  was  issued  on  February  27th,  and  claimed  that 
the  cargo  should  be  condemned  as  contraband  of  war.  No  pro- 
ceedings were  taken  or  even  threatened  against  the  ship  herself, 
and  in  the  ordinary  course  the  cargo  would  have  been  unloaded 
when  seized  so  that  the  ship  would  be  free  to  leave.  The  owners 
of  the  cargo,  however,  have  throughout  objected  to  the  discharge 
of  the  cargo  and  it  is  because  of  this  objection  that  the  ship  is 
still  at  Falmouth  with  the  cargo  on  board. 

*  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  125-126. 


96  A  SURVEY  OF  INTERNATIONAL  RELATIONS 

His  Majesty's  Government  have  formally  undertaken  that 
even  should  the  condemnation  of  the  cargo  as  contraband  be 
secured  in  the  prize  court  they  would  none  the  less  compensate 
the  owners  for  any  loss  sustained  in  consequence  of  the  ship 
having  been  stopped  and  proceedings  taken  against  the  cargo.' 

To  prevent  British  interference  with  neutral  trade  with  the 
civilian  population  of  neutral  countries,  Germany  was,  in  Secretary 
Bryan's  note  of  February  20,  1915,  urged  to  agree  that  "all  impor- 
tations of  food  or  foodstuffs  from  the  United  States  (and  from  such 
other  neutral  countries  as  may  ask  it)  into  Germany  shall  be  con- 
signed to  agencies  to  be  designated  by  the  United  States  Govern- 
ment ' '  2  and  to  be  delivered  by  these  American  agencies  to  retail 
dealers  bearing  licenses  from  the  Imperial  German  Government,  with 
the  assurance  that  the  commodities  thus  imported  should  not  be 
"diverted  to  the  use  of  the  armed  forces  of  Germany";  and  Great 
Britain  was  to  agree  not  to  place  food  and  foodstuffs  upon  the  list  of 
absolute  contraband  and  not  to  interfere  with  the  importation  of  food 
and  foodstuffs  to  Germany  consigned,  as  above  stated,  to  American 
agencies  and  delivered  to  retail  dealers  in  Germany  under  the  formal 
assurance  of  the  Imperial  Government  that  the  commodities  thus 
imported  should  not  be  diverted  to  the  use  of  the  armed  forces  of 
Germany.  The  belligerent  Governments  failed  to  agree,  and  each 
country  having  adopted  retaliatory  measures  because  of  the  alleged 
misconduct  of  the  other,  continued  their  measures  of  retaliation  and 
of  reprisal  at  the  expense  of  the  neutral. 

Section  5.   Summary 

Without  entering  into  details,  which  would  be  necessary  in  order 
to  indicate  and  to  justify  the  protests  of  the  United  States  against 
actions  of  Great  Britain  contrary  to  international  law  in  respect  to 
neutral  trade  and  commerce,  it  is  sufficient  for  present  purposes  to 
state  that  any  and  every  interference  on  the  part  of  Great  Britain 
with  neutral  commerce  to  belligerents  in  violation  of  the  rights 
of  neutrals  under  international  law  has  been  the  subject  of  vigor- 
ous, consistent,  and  continuous  protest  on  the  part  of  the  United 
States.  Thus,  the  United  States  has  objected  to  the  continuous  addi- 
tion of  articles  to  the  lists  of  absolute  contraband  and  to  the  lists 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.   178-179. 
illid.,  p.  98. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY        97 

of  conditional  contraband.  It  has  protested  against  the  alleged  block- 
ade of  Germany  by  Great  Britain,  holding  that  such  blockade  is  by 
means  unknown  to  international  law  and  therefore  cannot  be  recog- 
nized. The  United  States  has  also  protested  against  all  attempts  on  the 
part  of  Great  Britain  either  to  blockade  neutral  territory  or,  by  indirec- 
tion, to  obtain  the  advantages  that  would  accrue  from  the  blockade  of 
neutral  ports  of  access  if  it  were  possible  under  international  law.  The 
United  States  has  insisted  from  the  beginning  of  the  war  that  it  was 
free  to  trade  with  neutral  ports  in  all  commodities,  that  the  doctrine  of 
continuous  voyage  does  not  apply  to  innocent  articles,  that  the  doc- 
trine of  contraband  cannot  be  made  to  apply  to  goods  leaving  Ger- 
many for  a  neutral  port;  that  under  the  Declaration  of  Paris,  to 
which  Great  Britain  was  a  party,  the  neutral  flag  covered  enemy 
goods — that  is  to  say,  German  goods  transported  in  a  neutral  vessel 
were  free  from  seizure;  and  the  United  States  specifically  reserved 
in  all  these  cases  its  rights  under  international  law  to  be  made  the 
basis  of  claims  to  be  presented  to  the  British  Government  if,  in  the 
judgment  of  the  United  States,  this  course  should  be  desirable  or 
necessary, 

A  full,  impartial,  and  careful  study  of  the  diplomatic  corre- 
spondence of  the  United  States  with  the  Imperial  German  Govern- 
ment and  with  Great  Britain  justifies,  it  is  believed,  Secretary 
Bryan's  statement  in  his  note  dated  April  21,  1915,  to  the 
German  Ambassador,  that  "this  Government  has  at  no  time 
and  in  no  manner  yielded  any  one  of  its  rights  as  a  neutral  to 
any  of  the  present  belligerents."'  The  United  States  insisted  upon 
the  observance  of  its  rights  and  protested  against  any  violation  of 
them  by  any  and  every  belligerent.  The  contention  of  the  Imperial 
German  Government  that  the  failure  of  the  United  States  as  a 
neutral  to  compel  Germany's  enemy  to  renounce  illegal  practices 
taxed  the  United  States  with  acquiescence  in  them  is  wide  of  the 
mark,  unless  a  neutral  is  obliged  to  maintain  its  neutral  right  by  force 
of  arms  upon  an  allegation  by  a  belligerent  that  its  neutral  right 
has  been  violated  by  its  enemy.  There  is  a  familiar  maxim  of  the 
common  law  which  is  not  without  application,  Cessante  ratione  legis 
cessat  et  ipsa  lex. 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.   128. 


CHAPTER   VII 

SALE    OF   MUNITIONS   OF   WAR 

A  further  grievance,  and  a  very  serious  one  if  it  could  be  sub- 
stantiated, is  the  ninth  charge  mentioned  in  Senator  Stone's  letter 
to  Secretary  Bryan,  which  reads  as  follows: 

No  interference  with  the  sale  to  Great  Britain  and  her  allies 
of  arms,  ammunition,  horses,  uniforms,  and  other  munitions  of 
war,  although  such  sales  prolong  the  conflict.' 

The  question  really  is  not  whether  sales  of  the  commodities  men- 
tioned prolong  the  conflict,  but  whether,  under  the  law  of  Nations 
as  at  present  understood  and  practiced,  such  sales  are  legal.  It  is 
believed  that  there  is  a  confusion  in  the  popular  mind  between 
transactions  to  which  the  Government  may  not  be  a  party  and  trans- 
actions to  which  the  subjects  or  citizens  of  a  neutral  Government 
may  be  parties.  It  would  be  wrong  for  a  Government,  as  such,  to 
sell  munitions  of  war  to  any  belligerent  or  to  all  belligerents,  but 
under  existing  international  law  it  may  be  and  it  is  legal  for  the 
subjects  and  citizens  of  a  country  to  do  what  their  Governments 
could  not  do,  namely,  to  sell  munitions  to  belligerent  Governments. 
The  time  may  come  when  citizens  will  be  prohibited  from  doing  what 
their  Governments  cannot  lawfully  do,  but  that  time  has  not  yet 
arrived,  and  until  it  does  transactions  of  this  kind  will  be  legal. 
It  is  simply  a  matter  of  commerce,  a  matter  of  trade ;  and  recognizing 
that  it  is  trade  of  a  kind  to  enable  the  belligerents  receiving  muni- 
tions to  continue  the  war,  the  belligerent's  enemy  is  given  the  right 
to  intercept  the  articles  and,  without  paying  for  them  unless  there 
is  a  treaty  to  that  effect,  to  destroy  them  or  to  use  them  against  the 
enemy  for  which  they  were  intended. 

The  distinction  is  drawn  between  innocent  articles  which  have  no 
effect  upon  the  war  and  articles  of  contraband  which  affect  the  war. 
In  the  one  case  they  may  not  be  seized,  in  the  second  case  they  may 
be;  and  international  law  puts  it  in  the  hand  of  the  belligerent  to 

*  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  254. 


A  SURVEY  OF  INTERNATIONAL  RELATIONS  99 

protect  itself  by  seizing  the  articles  in  question  instead  of  imposing 
a  duty  upon  the  neutral  to  prevent  their  exportation.  It  is  therefore 
not  the  fault  of  the  neutral  if  the  belligerent  does  not  avail  itself 
of  the  right  given  by  international  law  to  capture  and  confiscate  the 
articles.  It  is  the  duty  of  the  belligerent  to  do  so;  it  is  his  fault  if 
he  fails  to  do  so. 

In  the  present  case  it  is  proper  to  remark  that  Germany's  com- 
plaint would  seem  to  be  due  to  the  fact  that  British  control  of  the 
seas  enabled  Great  Britain  and  its  Allies  to  receive  munitions  of  war 
from  the  United  States,  which  would  be  impossible  if  Germany  con- 
trolled the  seas.  It  is  a  fact  that  Prussian  subjects  sold  large  quan- 
tities of  ammunition  to  Russia  during  the  Crimean  War,  and,  since 
the  establishment  of  the  Empire,  German  subjects  have  supplied 
indifferently  all  belligerents  who  have  needed  munitions  and  have  had 
the  money  to  buy  them;  and,  as  admirably  pointed  out  by  Secretary 
Lansing,  subjects  of  Germany  and  of  its  ally,  Austria-Hungary,  sold 
munitions  of  war  to  Great  Britain  in  its  war  with  the  Boer  Republics, 
notwithstanding  the  fact  that  the  Boers  had  neither  ships  nor  sea- 
coast -and  could  neither  buy  the  commodities  nor  import  them  if 
bought.'  It  is  only  fair  to  state,  however,  in  this  connection,  that  the 
Kriegsbrauch  im  Landkriege,  issued  in  1902,  after  the  sales  in  ques- 
tion had  been  made,  recognized  the  right  of  subjects  to  supply 
belligerents  with  munitions,  but  nevertheless  condemns  sales  if  they 
be  in  large  quantities.    Thus : 

(b)  The  furnishing  of  contraband  of  war,  in  small  quantities, 
on  the  part  of  subjects  of  a  neutral  State  to  one  of  the  belligerents 
is,  so  far  as  it  bears  the  character  of  a  peaceable  private  business 
transaction  and  not  that  of  an  intentional  aid  to  the  war,  not  a  vio- 
lation of  neutrality.  No  Government  can  be  expected  to  prevent 
it  in  isolated  and  trivial  cases,  since  it  would  impose  on  the  States 
concerned  quite  disproportionate  exertions,  and  on  their  citizens 
countless  sacrifices  of  money  and  time.  He  who  supplies  a  bel- 
ligerent with  contraband  does  so  on  his  own  responsibility  and 
peril,  and  exposes  himself  to  the  risk  of  Prize. 

(c)  On  the  other  hand,  the  furnishing  of  war  supplies  on  a 
large  scale  is  an  altogether  different  matter;  undoubtedly  this 
represents  actual  service  to  a  belligerent,  and  in  most  cases,  war- 
like cooperation  as  well.  Therefore,  if  a  neutral  State  wishes  to 
evidence  its  full  impartiality  in  the  war,  it  must  do  its  utmost 
to  prevent  the  furnishing  of  such  supplies.  The  instructions 
to  the  customs  authorities  must  be  so  clearly  and  so  precisely 
set  forth  that,  on  the  one  hand,  they  declare  the  will  of  the  Gov- 
ernment to  oppose  with  all  available  might  such  business  trans- 


100        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

actions,  but  on  the  other  hand,  they  do  not  arbitrarily  restrict 
and  cripple  the  entire  domestic  trade.^ 

But  perhaps  it  is  not  unfair  to  observe  that  Germany  is  the  land 
of  munitions,  that  preparation  for  war  is  a  cardinal  Prussian  doc- 
trine, and  that,  overstocked  with  munitions,  its  enemies  would  fall 
an  easy  prey  if  there  were  a  rule  of  law  preventing  them  from  buy- 
ing munitions  of  war  in  the  market  open  to  all.  At  least  a  dis- 
tinguished English  publicist,  writing  in  1870  as  an  outspoken  friend 
of  Prussia  in  its  war  with  France,  so  held,  and  the  language  of  Gold- 
win  Smith,  directed  against  the  French  autocrat  of  1870,  is  applicable 
to  the  Prussian  autocrat  of  today.  Thus,  in  a  letter  dated  November 
15,  1870,  to  Max  Miiller,  then  Professor  of  Sanscrit  in  Oxford  Univer- 
sity, complaining  against  a  sale  of  munitions  by  American  merchants 
to  France,  Goldwin  Smith  used  this  pointed,  weighty,  and  appropriate 
language : 

It  is  simply  the  American  view  of  International  Law,  and,  I 
venture  to  think,  the  right  view. 

It  would  be  too  much  to  expect  that,  whenever  any  two 
nations  chose  to  disturb  the  peace  of  the  world,  all  the  other 
nations  should  be  required  to  prohibit  lawful  trading,  and  to 
turn  their  Governments  into  detectives  armed,  as  they  must  be 
for  such  a  purpose,  with  arbitrary  powers.  You  cannot  draw 
any  real  distinction  between  arms  and  other  things  needed  by 
belligerents.  One  belligerent  needs  rifles,  another  saddlery,  a 
third  cloth  for  uniforms,  a  fourth  biscuit,  a  fifth  copper  or  iron. 

There  is  a  special  reason  for  not  prohibiting  the  purchase 
of  arms.  If  this  were  done  a  great  advantage  would  be  given, 
against  the  interests  of  civilization,  to  Powers  which,  during 
peace,  employed  their  revenues  in  arming  themselves  for  war 
instead  of  endowing  professors.  A  moral  and  civilized  Power, 
which  had  been  benefiting  humanity,  would  be  assailed  by  some 
French  Empire  which  had  been  collecting  chassepots,  and  when 
it  went  to  provide  itself  with  the  means  of  defense  International 
Law  would  shut  up  the  gunshop.^ 

Substitute  for  the  chassepot  the  Krupp  gun,  and  the  language  is 
wonderfully  apt  and  impressive. 

Secretary  Lansing,  in  his  reply  to  the  Austrian  protest  against 
the  manufacture  and  sale  of  munitions  to  one  belligerent,  stated 
Mr.  Goldwin  Smith's  reasoning  in  different  language,  and  added  rea- 

'  Kriegsbrauch  im  Landkriege,  pp.  71-72. 

2  A  selection  from  Goldwin  Smith's  Correspondence,  collected  by  Arnold  Haul- 
iain    (London,  1913),  p.  35. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      101 

sons  of  his  own  in  support  of  the  manufacture  and  sale  of  munitions, 
which  make  a  strong  appeal  to  the  civilian  as  distinguished  from  the 
militarist.  Before,  however,  quoting  Secretary  Lansing  on  this  point, 
it  will  be  of  interest  to  quote  an  earlier  passage  of  Mr.  Lansing's 
note,  as  showing  the  difference  between  practice  and  precept.    Thus: 

In  this  connection  it  is  pertinent  to  direct  the  attention  of  the 
Imperial  and  Royal  Government  to  the  fact  that  Austria- 
Hungary  and  Germany,  particularly  the  latter,  have  during  the 
years  preceding  the  present  European  war  produced  a  great 
surplus  of  arms  and  ammunition,  which  they  sold  throughout 
the  world  and  especially  to  belligerents.  Never  during  that  period 
did  either  of  them  suggest  or  apply  the  principle  now  advocated 
by  the  Imperial  and  Royal  Government. 

During  the  Boer  War  between  Great  Britain  and  the  South 
African  Republics  the  patrol  of  the  coasts  of  neighboring  neu- 
tral countries  by  British  naval  vessels  prevented  arms  and 
ammunitions  reaching  the  Transvaal  or  the  Orange  Free  State. 
The  allied  Republics  were  in  a  situation  almost  identical  in  that 
respect  with  that  in  which  Austria-Hungary  and  Germany  find 
themselves  at  the  present  time.  Yet,  in  spite  of  the  commercial 
isolation  of  one  belligerent,  Germany  sold  to  Great  Britain,  the 
other  belligerent,  hundreds  of  thousands  of  kilos  of  explosives, 
gunpowder,  cartridges,  shot,  and  weapons;  and  it  is  known  that 
Austria-Hungary  also  sold  similar  munitions  to  the  same  pur- 
chaser, though  in  smaller  quantities.  While,  as  compared  with 
the  present  war,  the  quantities  sold  were  small  (a  table  of  the 
sales  is  appended),  the  principle  of  neutrality  involved  was  the 
same.  If  at  that  time  Austria-Hungary  and  her  present  ally 
had  refused  to  sell  arms  and  ammunition  to  Great  Britain  on 
the  ground  that  to  do  so  would  violate  the  spirit  of  strict  neu- 
trality, the  Imperial  and  Royal  Government  might  with  greater 
consistency  and  greater  force  urge  its  present  contention. 

It  might  be  further  pointed  out  that  during  the  Crimean  War 
large  quantities  of  arms  and  military  stores  were  furnished  to 
Russia  by  Prussian  manufacturers;  that  during  the  recent  war 
between  Turkey  and  Italy,  as  this  Government  is  advised,  arms 
and  ammunition  were  furnished  to  the  Ottoman  Government  by 
Germany ;  and  that  during  the  Balkan  wars  the  belligerents  were 
supplied  with  munitions  by  both  Austria-Hungary  and  Germany. 
While  these  latter  cases  are  not  analogous,  as  is  the  case  of  the 
South  African  War,  to  the  situation  of  Austria-Hungary  and 
Germany  in  the  present  war,  they  nevertheless  clearly  indicate 
the  long-established  practice  of  the  two  Empires  in  the  matter 
of  trade  in  war  supplies.^ 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  167-168. 


102        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

But  to  return  to  the  matter  in  hand.  Secretary  Lansing,  in  a 
passage  of  his  note  above  quoted,  thus  confirms  and  supplements 
Mr.  Goldwin  Smith's  reasoning: 

But,  in  addition  to  the  question  of  principle,  there  is  a  prac- 
tical and  substantial  reason  why  the  Government  of  the  United 
States  has  from  the  foundation  of  the  Republic  to  the  present 
time  advocated  and  practiced  unrestricted  trade  in  arms  and 
military  supplies.  It  has  never  been  the  policy  of  this  country 
to  maintain  in  time  of  peace  a  large  military  establishment  or 
stores  of  arms  and  ammunition  sufficient  to  repel  invasion  by 
a  well  equipped  and  powerful  enemy.  It  has  desired  to  remain 
at  peace  with  all  nations  and  to  avoid  any  appearance  of  menac- 
ing such  peace  by  the  threat  of  its  armies  and  navies.  In  con- 
sequence of  this  standing  policy  the  United  States  would,  in  the 
event  of  attack  by  a  foreign  Power,  be  at  the  outset  of  the  war 
seriously,  if  not  fatally,  embarrassed  by  the  lack  of  arms  and 
ammunition  and  by  the  means  to  produce  them  in  sufficient  quan- 
tities to  supply  the  requirements  of  national  defense.  The  United 
States  has  always  depended  upon  the  right  and  power  to  pur- 
chase arms  and  ammunition  from  neutral  nations  in  case  of 
foreign  attack.  This  right,  which  it  claims  for  itself,  it  cannot 
deny  to  others. 

A  nation  whose  principle  and  policy  it  is  to  rely  upon  inter- 
national obligations  and  international  justice  to  preserve  its 
political  and  territorial  integrity  might  become  the  prey  of  an 
aggressive  nation  whose  policy  and  practice  it  is  to  increase 
its  military  strength  during  times  of  peace  with  the  design  of 
conquest,  unless  the  nation  attacked  can,  after  war  had  been 
declared,  go  into  the  markets  of  the  world  and  purchase  the 
means  to  defend  itself  against  the  aggressor. 

The  general  adoption  by  the  nations  of  the  world  of  the 
theory  that  neutral  powers  ought  to  prohibit  the  sale  of  arms 
and  ammunition  to  belligerents  would  compel  every  nation  to 
have  in  readiness  at  all  times  sufficient  munitions  of  war  to  meet 
any  emergency  which  might  arise  and  to  erect  and  maintain 
establishments  for  the  manufacture  of  arms  and  ammunition 
sufficient  to  supply  the  needs  of  its  military  and  naval  forces 
throughout  the  progress  of  a  war.  Manifestly  the  application 
of  this  theory  would  result  in  every  nation  becoming  an  armed 
camp,  ready  to  resist  aggression  and  tempted  to  employ  force 
in  asserting  its  rights  rather  than  appeal  to  reason  and  justice 
for  the  settlement  of  international  disputes. 

Perceiving,  as  it  does,  that  the  adoption  of  the  principle  that 
it  is  the  duty  of  a  neutral  to  prohibit  the  sale  of  arms  and 
ammunition  to  a  belligerent  during  the  progress  of  a  war  would 
inevitably  give  the  advantage  to  the  belligerent  which  had  en- 
couraged the  manufacture  of  munitions  in  time  of  peace  and 
which  had  laid  in  vast  stores  of  arms  and  ammunition  in  antici- 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    103 

pation  of  war,  the  Government  of  the  United  States  is  convinced 
that  the  adoption  of  the  theory  would  force  militarism  on  the 
world  and  work  against  that  universal  peace  which  is  the  desire 
and  purpose  of  all  nations  which  exalt  justice  and  righteous- 
ness in  their  relations  with  one  another.^ 

But  this  grievance,  if  such  it  can  properly  be  called,  is  far  from 
new.  As  far  as  the  United  States  was  concerned,  the  question  first 
arose  during  the  wars  of  the  French  Revolution,  when  France  com- 
plained of  the  sale  of  munitions  to  Great  Britain,  then  its  enemy, 
insisting  that  the  sale,  because  it  benefited  Great  Britain,  was  illegal, 
whereas  the  illegality  in  all  probability  would  not  have  been  noted  and 
branded  as  such  if  the  sale,  and  therefore  the  benefit,  had  been  to 
France.  In  the  interest  of  fairness  it  is  only  proper  to  remark  that 
the  people  of  the  North  were  much  put  out  with  Great  Britain  during 
the  Civil  War  because  subjects  of  that  country  supplied  the  Confed- 
erate States  with  arms  and  ammunition.  And  no  doubt  in  the  future 
complaints  of  a  similar  kind  will  be  made;  but,  if  Secretary  Lansing's 
views  are  just,  it  is  believed  that  the  world  will  be  unwilling  to 
renounce  the  means  of  self-defense  at  the  behest  of  a  nation  making 
of  war  a  business  and  of  peace  a  preparation  for  war. 

It  is  feared,  however,  that  the  above  discussion  does  not  adequately 
state  the  contentions  of  Germany  and  of  Austria-Hungary.  Both 
these  Governments  admit  that  it  is  lawful  for  citizens  of  the  United 
States  to  manufacture  and  to  sell  arms  to  belligerents,  but  that  the 
situation  is  changed  if  in  fact  sales  can  only  be  made  to  one  belligerent 
instead  of  to  all  belligerents,  and  that  the  creation  of  factories  during 
war  for  the  express  purpose  of  furnishing  supplies  which  can,  in  the 
nature  of  things,  only  be  sold  to  one  belligerent,  is  a  violation  of  the 
spirit  of  neutrality  if  it  is  not  a  breach  of  the  letter  of  the  law. 
Thus,  in  a  memorandum  of  the  Imperial  German  Embassy  dated 
April  4,  1915,  the  German  Ambassador  calls  attention  to  the  differ- 
ence between  this  war  and  previous  wars,  stating  that,  in  times  past, 
arms  and  ammunition  might  be  obtained  from  many  countries, 
whereas  in  the  present  case  the  United  States  was  the  only  neutral 
Power  in  which  arms  and  ammunition  could  be  made  and  supplied  to 
the  belligerents.  The  German  Ambassador  felt  justified  because  of 
this  to  contend  that: 

The  conception  of  neutrality  is  thereby  given  a  new  purport, 
independently  of  the  formal  question  of  hitherto  existing  law. 
In  contradiction  thereto,   the  United   States  is  building  up  a 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  168-169. 


104        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

powerful  arms  industry  in  the  broadest  sense,  the  existing  plants 
not  only  being  worked  but  enlarged  by  all  available  means,  and 
new  ones  built.  The  international  conventions  for  the  protection 
of  the  rights  of  neutral  nations  doubtless  sprang  from  the  neces- 
sity of  protecting  the  existing  industries  of  neutral  nations  as 
far  as  possible  from  injury  in  their  business.  But  it  can  in  no 
event  be  in  accordance  with  the  spirit  of  true  neutrality  if, 
under  the  protection  of  such  international  stipulations,  an  en- 
tirely new  industry  is  created  in  a  neutral  state,  such  as  is  the 
development  of  the  arms  industry  in  the  United  States,  the  busi- 
ness whereof,  under  the  present  conditions,  can  benefit  only  the 
belligerent  powers.'^ 

It  is  believed  that  this  contention  is  without  foundation.  If  it  is 
right  to  make  and  to  sell  arms  in  ordinary  course  of  trade,  it  is 
difficult  to  see  how  and  why  it  is  wrong  to  increase  the  output ;  and 
if,  because  of  a  market,  the  business  flourishes  to  such  an  extent  as 
to  become  a  branch  of  industry  or  an  industry,  the  merchants  are 
to  be  charged  with  unlawful  conduct  merely  because  they  are  suc- 
cessful. We  should  not  make  success  the  test  of  right  or  wrong,  and 
if  it  is  right  to  do  a  thing,  success  in  doing  it  cannot  properly  be 
considered  a  crime. 

Statements  of  this  kind  are  ingenious;  they  are  not,  however, 
convincing,  for  if  the  arms  and  ammunition  made  in  the  United 
States  did  not  reach  Germany's  enemies  there  might  be,  to  use  a 
phrase  of  national  law,  damnum  absque  injuria,  and  Germany  would 
suffer  no  injury  from  exports  of  arms  and  ammunition,  however  large 
they  might  be,  destined  to  its  enemies,  if  German  cruisers  operating 
on  the  surface,  or  if  German  submarines,  plying  their  calling  below 
the  surface,  could  intercept  the  arms  and  ammunition  and  prevent 
them  from  falling  into  the  hands  of  their  enemies.  The  control  of 
the  seas  enabled  Great  Britain  to  secure  and  its  allies  to  supply 
themselves  with  arms  and  ammunition  manufactured  in  foreign  parts. 
The  inability  to  control  the  seas  has  deprived  Germany  and  its  allies 
of  neutral  markets.  This  is  Germany's  misfortune,  it  is  not  the 
neutral's  fault,  and  no  amount  of  casuistry  can  change  this  fact,  for 
fact  it  is,  and  justify  a  grievance  grounded  on  a  misinterpretation 
of  existing  law. 

There  was,  however,  another  answer  to  the  contentions  of  the 
Imperial  German  Government  that  the  United  States  should  either 
sell  to  both  or  sell  to  neither ;  that  if  in  fact  munitions  could  only  be 
exported  to  Great  Britain  and  its  allies  because  of  British  control 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  126. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      105 

of  the  seas,  the  United  States  should  equalize  matters  by  forbidding 
the  export  of  munitions.  The  answer  was  made  by  Secretary  Bryan 
in  the  following  passage  from  a  note  to  the  Imperial  German  Ambas- 
sador to  the  United  States: 

In  the  third  place,  I  note  with  sincere  regret  that,  in  discuss- 
ing the  sale  and  exportation  of  arms  by  citizens  of  the  United 
States  to  the  enemies  of  Germany,  Your  Excellency  seems  to  be 
under  the  impression  that  it  was  within  the  choice  of  the  Gov- 
ernment of  the  United  States,  notwithstanding  its  professed  neu- 
trality and  its  diligent  efforts  to  maintain  it  in  other  particu- 
lars, to  inhibit  this  trade,  and  that  its  failure  to  do  so  manifested 
an  unfair  attitude  toward  Germany.  This  Government  holds, 
as  I  believe  Your  Excellency  is  aware,  and  as  it  is  constrained 
to  hold  in  view  of  the  present  indisputable  doctrines  of  accepted 
international  law,  that  any  change  in  its  own  laws  of  neutrality 
during  the  progress  of  a  war  which  would  affect  unequally  the 
relations  of  the  United  States  with  the  nations  at  war  would  be 
an  unjustifiable  departure  from  the  principle  of  strict  neutrality 
by  which  it  has  consistently  sought  to  direct  its  actions,  and  I 
respectfully  submit  that  none  of  the  circumstances  urged  in 
Your  Excellency's  memorandum  alters  the  principle  involved. 
The  placing  of  an  embargo  on  the  trade  in  arms  at  the  present 
time  would  constitute  such  a  change  and  be  a  direct  violation  of 
the  neutrality  of  the  United  States.  It  will,  I  feel  assured,  be 
clear  to  Your  Excellency  that,  holding  this  view  and  considering 
itself  in  honor  bound  by  it,  it  is  out  of  the  question  for  this 
Government  to  consider  such  a  course.^ 

Unable  to  persuade  the  executive  or  legislative  departments  of  the 
Government  to  put  an  embargo  upon  the  export  of  munitions,  one 
Pearson,  a  native  of  the  Transvaal,  attempted  on  two  occasions  to 
secure  an  injunction — in  a  Federal  court  in  1902  against  the  export  of 
horses  and  mules  by  the  British  during  the  Boer  War,  alleging  that 
by  such  export  his  property  in  the  Transvaal  was  being  irreparably 
injured  and  the  war  prolonged  and  that  the  export  of  contraband 
under  such  conditions  was  contrary  to  neutral  conduct ;  and,  in  1915, 
having  become  a  citizen  of  the  United  States,  he  endeavored  to  have 
a  court  of  Wisconsin  enjoin  the  export  of  munitions  to  Great  Britain, 
alleging  that,  by  their  export,  property  which  he  held  in  Germany 
was  being  irreparably  injured,  and  the  war  itself  prolonged,  contrary 
to  sound  neutrality .- 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  128-129. 

2  The  first  case  is  entitled  Pearson  v.  Parsons,  et  al.,  108  Federal  Reporter, 


CHAPTER   VIII 
MISCELLANEOUS  COMPLAINTS 

Section  1.    Sale  of  Dumdum  Bullets 

This  grievance,  like  so  many  others  without  foundation,  never- 
theless deserves  consideration  because  a  specific  complaint  was  made 
by  the  Imperial  German  Ambassador  in  a  note  dated  December  5, 
1914,  to  the  Department  of  State,  calling  attention  to  "fresh  violations 
of  the  Geneva  Convention  as  well  as  of  Section  II,  Article  23e  of 
The  Hague  Convention  of  July  28,  1899,  by  the  British  Government. 
The  violation  of  those  Conventions  consists  in  the  use  of  dumdum 
bullets."^    After  calling  attention  to  *' soft-nosed  cartridges,"  which 

p.  491.  The  second,  Pearson  v.  Allis-Chalmers  Company,  decided  by  the  circuit 
court  of  Milwaukee  County,  State  of  Wisconsin,  May  29,  1915,  is  to  be  found 
in  the  October,  1917,  number  of  the  American  Journal  of  International  Law. 
This  second  case  discusses  the  treaty  of  May  1,  1828,  between  the  United  States 
and  Prussia,  the  writings  of  publicists,  and  the  practice  of  nations.  A  brief 
extract  is  quoted  from  Judge  Turner's  opinion: 

Counsel  for  the  plaintiff  readily  conceded  upon  the  argument  that  unless 
there  is  actionable  wrong  done  or  threatened  by  the  defendant,  no  action  in 
equitj'  exists.  War,  today,  is  recognized  by  all  nations  as  a  legal  act,  when 
it  is  declared  and  conducted  according  to  the  rules  of  international  law. 
When  nations  of  the  earth  are  ready  to  condemn  war  and  accept  the  decision 
of  an  international  court  in  lieu  thereof,  then  the  principle  here  urged  by 
the  plaintiff  will  become  one  of  the  governing  rules  of  man,  and  anyone 
thereafter  engaged  in  committing  or  furthering  a  state  of  war  will  be  doing 
an  act  prohibited  by  the  law  of  nations.  It,  therefore,  follows  that  citizens 
of  a  neutral  government  who  have  the  right  to  trade  with  a  belligerent 
and  furnish  arms  and  munitions  of  war,  cannot  be  said  to  be  engaged  in 
doing  an  unlawful  and  immoral  act  in  view  of  the  well  recognized  fact  that 
for  so  many  years  such  conduct  has  been  recognized  and  permitted  by  treaty 
as  well  settled  principles  of  international  law.  It  is  the  convention  of 
nations  that  makes  international  law,  and  not  the  wishes  or  decisions  of 
the  courts.  The  courts  have  the  duty  of  construing  the  rules  as  laid  down 
by  the  nations  in  their  conventions,  out  of  which  arise  the  principles 
governing  them  in  their  relations  with  each  other;  but  the  courts  cannot, 
in  the  face  of  the  well  settled  principles  of  international  law  as  here  indi- 
cated, hold  or  conclude  that  the  doing  by  a  citizen  of  an  act  which  the 
executive  branch  of  the  government  recognizes  in  the  light  of  the  law  of 
nations  to  be  legal  and  lawful,  is  an  unlawful  and  immoral  act  of  such  a 
character  as  to  give  rise  to  that  species  of  actionable  wrong  without  which 
the  jurisdiction  of  a  court  of  equity  cannot  attach. 

*  M8S.  Opinions,  Joint  State  and  Navy  Neutrality  Board. 

106 


A  SURVEY  OF  INTERNATIONAL  RELATIONS         107 

the  Ambassador  states  were  used  by  the  British,  the  note  continues 
to  specify  charges  against  American  firms,  which  can  best  be  stated 
in  the  Ambassador's  own  words.    Thus: 

2.  It  has  come  to  the  knowledge  of  the  German  Govern- 
ment that  the  British  Government  has  ordered  from  the  Win- 
chester Repeating  Arms  Company  20,000  "Riot  Guns,"  Model 
1897,  and  50,000,000  "Buckshot  Cartridges"  for  the  same.  The 
buckshot  cartridge  contains  nine  shots. 

The  use  of  those  arms  and  munitions  has  not  yet  become 
known  to  civilized  warfare. 

3.  The  Union  Metallic  Cartridge  Company  of  Bridgeport, 
Conn.,  on  October  20th  took  out  through  Frank  0.  Hoagland  the 
inclosed  patent  for  the  manufacture  of  a  "Mushroom  Bullet." 

According  to  information  the  accuracy  of  which  is  not  to 
be  doubted  8,000,000  of  those  cartridges  have  been  delivered 
to  Canada  since  October  of  this  year  by  the  Union  Metallic 
Cartridge  Company  for  the  armament  of  the  English  army. 
Cartridges  made  by  that  process,  although  cut  through,  cannot 
be  distinguished,  for  their  external  appearance,  from  the  regu- 
lar full  jacketed  cartridges.  The  soldiers  in  whose  hands  this 
kind  of  ammunition  is  placed  by  the  British  Government  are 
not  in  position  to  know  that  they  are  firing  dumdum  bullets. 

Whether  the  use  of  the  mushroom  bullet  is  contrary  to  the 
law  of  nations  is  open  to  discussion.' 

In  a  later  portion  of  this  note  the  Ambassador  said: 

Even  though  there  should  be  no  intention  to  use  the  ammuni- 
tion described  under  2  and  3  on  the  theatre  of  war  in  Europe, 
although  it  may  be  inferred  from  the  magnitude  of  the  order, 
it  is  very  plain  that  the  intention  is  to  use  them  in  the  English 
colonies  against  the  Boers,  Hindoos,  Turks,  and  Egyptians. 

Even  against  this  method  of  warfare  which  sets  every  rule 
of  international  law  at  defiance  the  Imperial  Government  raises 
its  protest. 

It  cannot  be  within  the  spirit  of  the  neutrality  repeatedly 
declared  by  the  Government  of  the  United  States  that  the  Ameri- 
can industry  supply  the  fighting  forces  of  the  Allies  with  arms 
and  ammunition  the  use  of  which  is  contrary  to  international 
law  and  constitutes  a  violation  of  the  above  cited  Conventions  to 
which  the  United  States  is  a  signatory  party.^ 

^  MS8.  Opinions,  Joint  State  and  Navy  Neutrality  Board. 

2  This  note  is  very  characteristic  of  belligerent  correspondence.  It  assumes, 
but  does  not  prove,  a  certain  action  on  the  part  of  the  enemy  or  of  a  neutral 
country.  It  then  states  in  general  terms  that  such  action  is  contrary  to  inter- 
national law,  sometimes  referring  to  a  convention  or  a  principle  of  international 
law,  without,  however,  quoting  the  text. 


108        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  Ambassador  was  requested  by  the  Department  of  State  to 
substantiate  his  charges  in  so  far  as  the  United  States  was  concerned, 
a  request  with  which  he  did  not  comply.  The  firms  implicated  were 
asked  by  the  Department  to  explain  their  conduct,  which  they  did, 
with  the  result  that,  instead  of  8.000.000  cartridges  manufactured 
and  sold  by  the  Union  Metallic  Cartridge  Company,  a  little  over 
117,000  were  manufactured,  and  109,000  sold.  This  company  stated 
that  they  were  manufactured  for  sporting  purposes  and  that  the  cart- 
ridges could  not  be  used  in  the  military  rifles  of  any  foreign  Power; 
that,  from  the  detailed  list  of  persons  to  whom  the  cartridges  were 
sold,  some  960  cartridges  went  to  British  North  America  and  some 
100  to  British  East  Africa.  In  regard  to  the  orders,  the  reply  from 
the  Winchester  Repeating  Arms  Company  was  equally  categorical, 
assuring  the  Department  of  State,  in  reply  to  a  request  for  informa- 
tion, that  it  had  not  received  an  order  for  such  guns  or  cartridges 
or  for  the  sale  of  such  material  from  or  to  the  British  Government 
or  from  any  other  Government  engaged  in  the  war,^  This  informa- 
tion was  communicated  to  the  German  Ambassador  with  a  statement 
that,  if  he  could  furnish  evidence  that  American  firms  were  manu- 
facturing and  selling  to  the  belligerents,  to  be  used  in  the  war,  cart- 
ridges in  violation  of  The  Hague  Conventions,  the  President  would, 
as  Secretary  Bryan's  note  stated,  ''use  his  influence  to  prevent,  so 
far  as  possible,  sales  of  such  ammunition  to  the  Powers  engaged  in 
the  European  War  without  regard  to  whether  it  is  the  duty  of  this 
Government,  upon  legal  or  conventional  grounds,  to  take  such  action. ' ' 
Notwithstanding  the  fact  that  the  substance  of  the  Ambassador's  note 
had  been  given  to  the  press.  Secretary  Bryan  was  able  to  conclude 
this  part  of  his  reply  with  the  statement  that  ''The  Department  has 
received  no  other  complaints  of  alleged  sales  of  dumdum  bullets  by 
American  citizens  to  belligerent  Governments. ' ' ' 

So  much  for  the  fact ;  now  as  to  the  law.  A  careful  examination 
fails  to  identify  the  Geneva  Convention  or  any  provision  thereof 
which,  as  the  Imperial  German  Ambassador  states,  was  violated  by 
the  use  of  dumdum  bullets.  The  bullets  referred  to  as  soft-nosed 
cartridges,  dumdum  cartridges,  and  mushroom  bullets,  are  of  one 
general  character,  and  can  be  generally  described  as  expanding  bul- 
lets, to  use  a  conventional  expression.  In  1899  a  declaration  in  the 
following  language  was  adopted  by  the  First  Hague  Peace  Con- 
ference : 

*  Letter  of  the  Secretary  of  State  to  the  Chairman  of  the  Senate  Committee 
on  Foreign  Relations,  January  20,  1915;  Senate  doc.  No.  716,  63d  Cong.,  3d  sess. ; 
ofiacial  text,  American  Journal  of  International  Law,  Special  Supplement,  July, 
1915,   p.   261. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      109 

The  contracting  Parties  agree  to  abstain  from  the  use  of 
bullets  which  expand  or  flatten  easily  in  the  human  body,  such 
as  bullets  with  a  hard  envelope  which  does  not  entirely  cover 
the  core  or  is  pierced  with  incisions. 


Portugal,  Great  Britain,  and  the  United  States  did  not  sign  this 
declaration,  although,  in  the  course  of  the  Second  Hague  Peace  Con- 
ference, Portugal  adhered  to  it  on  August  29th  and  Great  Britain  on 
August  30,  1907.^  The  United  States  has  not  adhered,  not  because 
it  was  opposed  to  the  principle,  but  because  it  then  believed  and  still 
believes  that  the  language  was  too  specific,  forbidding  the  use  of  this 
kind  of  a  bullet,  whereas  the  language  should  have  been  general, 
forbidding  the  use  of  any  kind  of  a  bullet  producing  unnecessary 
suffering.  The  United  States,  therefore,  not  having  signed,  ratified, 
or  adhered  to  the  declaration,  is  not  bound  by  its  terms,  and  as  a 
matter  of  law,  the  German  Ambassador  would  have  had  no  ground 
to  complain  even  if  the  fact  had  been  as  he  alleged. 

Finally,  the  German  Ambassador  refers  to  Article  23e  of  The 
Hague  Conventions  of  1899  and  1907  respecting  the  laws  and  cus- 
toms of  war  on  land.  The  text  of  the  land  warfare  convention  of  1899 
has  been  ratified  by  all  the  belligerents;  the  revised  text  of  1907  has 
been  signed  but  not  ratified  by  Bulgaria,  Italy,  Montenegro,  Servia, 
and  Turkey;  but  as  this  particular  article  is  the  same  in  each  Con- 
vention it  may  be  considered  for  present  purposes  as  accepted  with- 
out reservation  by  all  of  the  belligerents.  The  United  States  is  also 
a  signatory  and  a  ratifying  Power. 

Article  23  reads: 

Besides  the  prohibitions  provided  by  special  Conventions,  it 
is  especially  prohibited —    .    .    . 

(e)  To  employ  arms,  projectiles,  or  material  of  a  nature  to 
cause  superfluous  injury. 

The  question  arises  whether  this  prohibition  is  in  substance,  though 
not  in  form,  the  same  as  the  prohibition  contained  in  the  declara- 
tion. Without  arguing  the  matter,  it  would  appear  that  it  is  not 
the  same  because  the  American  delegation  would  have  excluded  it 
from  the  ratification  of  the  original  and  the  revised  convention,  as 
the  United  States  bitterly  opposed  the  declaration  in  1899  and  re- 
newed its  opposition  in  1907.     But  this  does  not  settle  the  matter, 

^  The  Hague  Conventions  and  Declarations  of  1899  and  1907,  pp.  231,  232. 


110        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

because,  if  the  cartridges  referred  to  by  the  German  Ambassador  as 
dumdum  bullets  cause  superfluous  injury,  to  quote  the  language  of 
Article  23e,  it  follows  that  the  United  States  should  prohibit  the 
manufacture,  the  sale,  and  the  exportation  of  such  bullets  to  belliger- 
ents and  that,  if  it  did  not  do  so,  it  would  render  itself  liable  under 
the  Convention.  In  the  absence  of  further  protest  on  the  part  of 
the  German  Ambassador,  whose  record  during  the  war  was  largely 
one  of  protest,  it  is  to  be  presumed  that  the  elements  were  lacking 
to  render  protest  in  this  matter  effective;  otherwise,  he  would  not 
have  dropped  it. 

Section  2.    Hovering  of  British  "Warships  Off  American  Ports 

The  question  involved  in  this  heading  is  one  of  peculiar  difficulty, 
because  the  undoubted  exercise  of  the  right  to  navigate  freely  the 
high  seas  permits  a  belligerent  vessel  to  approach  the  line  separating 
the  high  seas  from  the  territorial  waters  of  a  neutral  country,  and 
while  it  may  not  legally  commit  a  hostile  action  or  exercise  any  act 
of  sovereignty  within  the  territorial  waters  of  another  country,  it 
may  nevertheless  lawfully  exercise  all  the  rights  of  sovereignty  upon 
the  high  seas.  Legally  it  may  exercise  these  rights  just  beyond  the 
three-mile  line;  equitably,  it  should  not.  Within  the  three-mile  limit 
the  neutral  is  protected  by  international  law;  beyond  the  three-mile 
limit  it  can  only  appeal  to  comity.  The  situation  is  not  unlike  that 
of  a  country  mobilizing  its  troops  in  the  immediate  vicinity  of  the 
line  separating  it  from  its  neighbor.  Legally  this  is  proper;  as  a 
matter  of  fact  it  is  regarded  as  highly  inconvenient,  and  we  know 
from  the  experience  of  this  war,  as  pointed  out  in  the  correspondence 
dealing  with  this  question,  that  mobilization  within  the  territory  of 
one  of  the  belligerents  was  regarded  by  another  of  the  belligerents  as 
such  an  unfriendly  act,  indeed  a  menace,  as  to  cause  this  latter  coun- 
try to  declare  a  state  of  war  against  that  country  mobilizing  its  troops 
within  its  own  territory  but  dangerously  near  its  neighbor's  frontier. 
Thus,  Secretary  Lansing  said,  in  his  note  of  April  26,  1916,  to  the 
British  Ambassador  in  regard  to  this  very  matter: 

Further  reasons,  if  necessary,  may  be  adduced  to  oppose  the 
British  practice.  In  time  of  peace  the  mobilization  of  an  army, 
particularly  if  near  the  frontier,  has  often  been  regarded  as  a 
ground  for  serious  offense  and  been  made  the  subject  of  protest 
by  the  Government  of  a  neighboring  country.  In  the  present 
war  it  has  been  the  ground  for  a  declaration  of  war  and  the 
beginning  of  hostilities.     Upon  the  same  principle  the  constant 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      111 

and  menacing  presence  of  cruisers  on  the  high  seas  near  the 
ports  of  a  neutral  country  may  be  regarded  according  to  the 
canons  of  international  courtesy  as  a  just  ground  for  offense, 
although  it  may  be  strictly  legal.'- 

In  approaching  this  question  it  may  be  said  that  the  President's 
proclamation  of  neutrality  in  the  war  between  Germany  and  Great 
Britain,  issued  on  the  6th  of  August,  1914,  warned  the  belligerents 
"that  any  frequenting  and  use  of  the  waters  within  the  territorial 
jurisdiction  of  the  United  States  by  the  armed  vessels  of  a  belliger- 
ent, whether  public  ships  or  privateers,  for  the  purpose  of  preparing 
for  hostile  operations,  or  as  posts  of  observation  upon  the  ships  of 
war  or  privateers  or  merchant  vessels  of  a  belligerent  lying  within 
or  being  about  to  enter  the  jurisdiction  of  the  United  States,  must 
be  regarded  as  unfriendly  and  offensive,  and  in  violation  of  that 
neutrality  which  it  is  the  determination  of  this  Government  to  ob- 
serve. ' '  ^ 

This  clause  is  to  be  found  in  all  the  proclamations  of  neutrality 
issued  by  the  President  of  the  United  States  during  the  present 
war,  and  is  likewise  to  be  found  in  the  proclamation  issued  by  Presi- 
dent Grant  on  the  22d  day  of  August,  1870,  in  the  war  between 
France  and  the  North  German  Confederation  and  its  allies.  The 
present  proclamation,  therefore,  followed  precedent  which  had  stood 
the  test  of  the  previous  war  to  which  Prussia  was  a  party. 

But  the  policy  of  the  United  States  in  this  regard  is  much  older 
and  dates  from  the  very  early  days  of  the  Republic.  Thus  Mr.  Madi- 
son, Secretary  of  State,  writing  under  date  of  February  3,  1807,  to 
Messrs.  Monroe  and  Pinkney,  who  were  then  in  London  endeavoring  to 
negotiate  a  treaty  with  Great  Britain,  used  the  following  language: 

In  no  case  is  the  temptation  or  the  facility  greater  to  ships 
of  war  for  annoying  our  commerce,  than  in  their  hovering  on 
our  coasts  and  about  our  harbors;  nor  is  the  national  sensibility 
in  any  case  more  justly  or  more  highly  excited  than  by  such 
insults.^ 

And  in  a  later  note  to  Messrs.  Monroe  and  Pinkney,  dated  May  20, 
1807,  Secretary  Madison  said  in  reference  to  the  same  matter: 

It  is  much  regretted  that  a  provision  could  not  be  obtained 
against  the  practice  of  British  cruisers,  in  hovering  and  taking 

1  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  385. 

2  Ibid.,  July,  1915,  p.  196. 

3  American  State  Papers,  Foreign  Relations,  vol.  3,  p.  155. 


112        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

stations  for  the  purpose  of  surprising  the  trade  going  in  and 
out  of  our  harbors;  a  practice  which  the  British  Government 
felt  to  be  so  injurious  to  the  dignity  and  rights  of  that  Nation, 
at  periods  when  it  was  neutral.^ 

But  in  this  as  in  many  other  matters,  the  views  of  Nations  vary 
as  they  are  belligerent  or  neutral.  Great  Britain  objected  to  the 
practice  when  it  was  neutral,  it  followed  the  practice  when  belliger- 
ent; and  during  the  present  war  it  has  sought  to  justify  this  prac- 
tice to  which  the  United  States  has  strenuously  objected,  although 
the  United  States  when  belligerent  followed  the  practice  in  the  Civil 
War  which  Mr.  Madison  condemned  and  which  Secretary  Lansing 
has  likewise  condemned  during  that  part  of  the  present  war  in  which 
we  were  neutral.  Nevertheless,  the  practice  is  offensive,  and  although 
the  conduct  of  American  cruisers  during  the  Civil  War  was  sub- 
ject to  criticism,  as  was  properly  pointed  out  by  Great  Britain  in 
its  replies  to  Secretary  Lansing's  protest,  Mr,  Lansing  was  justified 
in  calling  the  subject  to  the  attention  of  the  British  Government  and 
requesting  that  the  practice  should  cease.  It  is  possible,  indeed,  to 
distinguish  the  eases,  as  pointed  out  by  Secretary  Lansing,  inasmuch 
as  the  instances  to  which  Great  Britain  referred  took  place  in  waters 
adjacent  to  the  United  States,  in  which  the  war  was  actively  prose- 
cuted, whereas  in  the  present  war  British  men-of-war  hovering  off 
our  coasts  have,  as  it  were,  brought  the  war  to  our  very  doors,  from 
which  we  were  then  separated  by  the  waters  of  the  ocean. 

Within  the  first  month  of  the  war  Mr,  Lansing,  then  Counselor, 
called  the  attention  of  the  British  Government  to  the  fact  that  the 
presence  of  British  cruisers  in  near  proximity  to  the  harbor  of  New 
York,  where  the  commerce  of  that  port  converges,  caused  a  very  bad 
impression,  and  that  the  continuance  of  this  policy  might  be  con- 
strued as  an  unfriendly  act  requiring  official  action.  In  the  last 
days  of  the  year  Mr,  Lansing  further  stated  that  two  British  men-of- 
war  lay  habitually  from  three  to  six  miles  southeast  of  Ambrose 
Channel  Light.  Mr,  Lansing,  however,  paraphrasing  the  language 
of  his  previous  note,  felt  justified  in  warning  the  British  Ambassador 
of  the  fact  that,  in  the  past,  the  Government  had  taken  a  very  strong 
stand  against  the  hovering  of  foreign  warships  in  the  vicinity  of  our 
great  ports,  and  that  the  continuance  of  the  practice  would  assuredly 
require  action  on  the  part  of  the  Government, 

The  matter  came  to  an  issue  in  the  case  of  TJie  Vinland,  a  Danish 
vessel  proceeding  in  ballast  from  New  York  to  Norfolk  in  the  month 

*  American  State  Papers,  Foreign  Relations,  vol.  3,  p.  170. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      113 

of  November,  1915,  in  order  to  load  a  cargo  of  coal  for  South 
America.  Tlie  Vinlayid  kept  within  the  three-mile  limit,  and  its 
master  asserted  that  he  was  found  by  a  British  cruiser  within 
American  territorial  waters  and  ordered  to  stop.  The  British 
Ambassador  was  immediately  notified  of  this  complaint  and  in 
his  reply  of  December  1,  1915,'  he  said  that  ''the  British  ships  of 
war  employed  in  the  Atlantic  have  strict  orders  against  the  violation 
of  American  territorial  waters"  and  in  a  later  note,  dated  Decem- 
ber 11,  1915,-  he  specifically  stated,  as  the  result  of  an  official  report 
from  his  Government,  that  "the  cruiser  was  never  within  four  and  a 
half  miles  of  the  shore,  nor  within  one  mile  of  Tlie  Yinland"  and 
that  "the  cruiser  was  generally  about  three  or  four  miles  off  The 
Yinland. ' ' 

On  this  state  of  affairs  the  two  Governments  argued  the  question. 
In  his  note  of  December  16,  1915,^  Secretary  Lansing,  referring  to 
previous  correspondence,  called  the  Ambassador's  "attention  to  the 
annoyance  which  His  Majesty's  cruisers,  lying  off  the  principal  com- 
mercial ports  of  the  United  States  and  stopping  and  searching  vessels 
immediately  beyond  American  waters,  have  given  to  shipping  both 
overseas  and  coastwise,  and  to  the  seriousness  with  which  the  Gov- 
ernment of  the  United  States  regarded  the  hovering  of  belligerent 
warships  about  American  coasts  and  ports."  He  further  informed 
the  Ambassador  that  "this  Government  has  always  regarded  the 
practice  of  belligerent  cruisers  patrolling  American  coasts  in  close 
proximity  to  the  territorial  waters  of  the  United  States  and  making 
the  neighborhood  a  station  for  their  observations  as  inconsistent  with 
the  treatment  to  be  expected  from  the  naval  vessels  of  a  friendly 
Power  in  time  of  war,  and  has  maintained  that  the  consequent  men- 
ace of  such  proceedings  to  the  freedom  of  American  commerce  is 
vexatious  and  uncourteous  to  the  United  States."  He  concluded  the 
note  with  the  earnest  request  that  "instructions  be  issued  to  His 
Majesty's  ships  to  desist  from  a  practice  which  this  Government 
is  convinced  has  been  maintained  for  long  periods  at  a  time  and 
which  is  peculiarly  disagreeable  to  it  and  to  American  traders  con- 
cerned. ' ' 

Following  the  usual  delay  of  diplomacy,  the  British  Ambassa- 
dor replied  to  this  note  on  March  20,  1916,*  but  the  British  Govern- 
ment seems  to  have  been  busied  in  the  meantime  with  American  prece- 
dents, with  which  the  reply  bristles.    In  the  first  place,  the  Ambassa- 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.  375. 

2  Ihid.,  p.  376.  » lUd.,  pp.  376-377.  *  lUd.,  pp.  379-381. 


114        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

dor  calls  attention  to  the  fact  that  no  charge  was  made  that  the 
British  cruisers  entered  the  territorial  waters  of  the  United  States, 
but  that,  on  the  contrary,  an  exception  was  taken  "to  proceedings 
of  these  vessels  when  navigating  admittedly  on  the  high  seas."  And 
this  objection,  he  said,  appeared  "to  rest  upon  a  claim  to  distinguish 
between  different  parts  of  the  high  seas,  a  claim  which  causes  sur- 
prise to  His  Majesty's  Government  who  are  unaware  of  the  existence 
of  any  rules  or  principles  of  international  law  which  render  belliger- 
ent operations,  which  are  legitimate  in  one  part  of  the  high  seas, 
illegitimate  in  another."  On  this  point  the  Ambassador  was  well 
advised,  but  whether  there  is  or  is  not  a  distinction  between  parts 
of  the  high  seas,  hovering  always  is  and  always  will  be  offensive  to 
neutrals.  With  this  by  way  of  introduction  the  Ambassador  states 
that  "the  rights  asserted  in  this  respect  by  the  United  States  Gov- 
ernment in  previous  wars  will  no  doubt  be  conceded  by  the  United 
States  Government  as  well  founded  when  exercised  by  others,"  and 
in  this  connection  he  refers  to  the  conduct  of  Admiral  Wilkes,  whose 
fame  as  an  Arctic  explorer  seems  destined  to  be  overshadowed  by 
his  misconduct  in  the  case  of  Tlie  Trent.  For  that  officer,  while 
denying  that  he  entered  British  ports  in  the  West  Indies  to  lie  in 
wait  for  Southern  vessels,  nevertheless  asserted  that  his  vessels 
"maintained  a  system  of  cruising  outside  of  the  neutral  waters  of 
Bermuda  in  excess  of  his  rights  as  a  belligerent."  This  was  an 
admission  on  the  part  of  Wilkes  and  it  became  an  admission  on  the 
part  of  the  Government  of  the  United  States  when,  on  January  15, 
1863,  Secretary  of  State  Seward  transmitted  it  to  the  British  Lega- 
tion in  Washington  in  refutation  of  the  charges  of  illegal  conduct 
against  Wilkes. 

With  this  precedent  in  his  favor,  the  British  Ambassador  called 
attention  to  the  large  number  of  ships  in  American  ports  and  the 
necessity  of  taking  such  position  on  the  high  seas  as  to  capture  such 
vessels  if  they  should  put  out  to  sea.  And  he  concluded  by  asserting 
that,  while  his  Government  could  not  abandon  any  of  its  rights 
"so  far  as  they  are  in  accordance  with  international  law  and  the 
practice  of  the  United  States  Government,"  Great  Britain  would 
nevertheless  try  to  exercise  such  rights  in  such  a  way  as  to  incon- 
venience neutrals  as  little  as  possible. 

On  April  26,  1916,'  Secretary  Lansing  answered  the  Ambassador's 
note  in  what  appears  to  be  the  last  of  the  series  on  this  subject  which 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplemei^ 
October,  1916,  pp.  383-386. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     115 

has  been  given  to  the  press.  At  the  very  beginning  of  his  note  the 
Secretary  of  State  was  very  careful  to  point  out  that  the  United  States 
did  not  claim  that  British  vessels  cruising  beyond  the  three-mile  limit 
were  not  "within  their  strict  legal  rights  under  international  law," 
and  he  pointed  out  that  the  objection  of  the  United  States  to  this 
practice  was  based  "not  upon  the  illegality  of  such  action  but  upon 
the  irritation  which  it  naturally  caused  to  a  neutral  country."  He 
thus  distinguished  present  British  from  past  American  practice, 
saying: 

The  circumstances  in  those  cases,  however,  were  very  differ- 
ent from  the  present,  and  the  practice  complained  of  far  less 
offensive.  The  cruising,  against  which  Great  Britain  protested, 
was  done  in  the  vicinity  of  small  islands  near  the  American 
coast  which,  after  the  blockade  of  the  southern  ports  had  been 
established,  were  used  as  rendezvous  for  vessels  notoriously 
engaged  in  running  the  blockade.  In  the  present  case  British 
cruisers  are  patrolling  off  the  great  ports  of  this  country  from 
which  trade  routes  diverge  to  all  parts  of  the  world,  particu- 
larly to  Great  Britain  and  her  allies.^ 

In  reply  to  the  Ambassador's  contention  that  British  warships  were 
stationed  in  proximity  to  ports  in  which  German  vessels  were  laid  up, 
the  Secretary  informed  the  Ambassador  that  ' '  a  considerable  number 
of  American  naval  vessels  have  been  constantly  engaged  since  the 
war  opened — and,  I  think  Your  Excellency  will  admit,  successfully 
engaged — in  preventing  the  use  of  American  ports  as  bases  of  naval 
operations,  ...  In  fact,  Your  Excellency  has  not  caUed  the  possi- 
bility of  the  escape  of  supply  ships  to  my  attention  since  March, 
1915."^  Secretary  Lansing  then  concluded  his  careful  and  dis- 
criminating note,  saying: 

I  have  shown,  I  believe,  that  this  Government's  contention  is 
supported  not  only  by  ample  precedents  extending  through 
American  and  British  relations  since  the  early  years  of  the 
Republic  and  by  the  analogy  in  the  mobilization  of  armed  forces 
near  an  international  boundary,  but  also  by  the  lack  of  a  suffi- 
cient excuse  for  such  an  objectionable  practice  as  I  have  had 
the  unpleasant  duty  of  bringing  to  Your  Excellency's  atten- 
tion. I  trust,  therefore,  that  your  Government  will  be  willing 
to  recognize  my  Government 's  contention  to  the  extent  of  instruct- 
ing His  Majesty's  cruisers  to  withdraw  from  the  vicinity  of  the 
territorial  waters  of  the  United  States  and  remain  at  such  dis- 

'  Official  text,  American  Journal  of  International  Laic,  Special   Supplement, 
October,  1916,  p.  384. 
2  Ibid.,  p.  385. 


116        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

tances  from  American  harbors  and  coasts  as  to  avoid  the  annoy- 
ing and  inquisitorial  methods  which  have  compelled  this  Gov- 
ernment to  complain  formally  to  Your  Excellency's  Govern- 
ment,' 

It  should  be  stated,  before  passing  from  this  phase  of  the  subject, 
that  the  Government  of  the  United  States,  when  it  was  a  belligerent 
and  when  it  was  therefore  against  its  interests,  recognized  the 
impropriety  of  lying  off  neutral  ports  in  order  to  capture  the  vessels 
of  its  enemy.  Secretary  Seward  informed  Lord  Lyons,  the  British 
Minister,  under  date  of  July  29,  1863,  that  the  Secretary  of  the  Navy 
had  issued  instructions  that  "it  was  not  proper  to  make  a  conveni- 
ence in  any  manner  of  neutral  territory  for  the  purpose  of  exer- 
cising the  belligerent  right  of  search  or  capture.  A  capture  of  a 
neutral  vessel  made  after  standing  off  and  on  a  neutral  harbor,  or 
mouth  of  a  river,  or  lying  in  wait  within  it  for  the  purpose,  although 
actually  made  beyond  the  neutral  jurisdiction,  would  not  be  recog- 
nized as  valid,  and  the  right  of  search  cannot  properly  be  exercised 
when  it  is  known  previously  that,  whatever  the  event  of  the  search, 
the  capture  would  not  be  lawful."  ^ 

It  is  believed  that,  notwithstanding  embarrassing  precedents,  the 
United  States  is  not  open  to  the  objection  that  British  warships 
were  permitted  without  protest  to  lie  off  American  ports  and  to 
intercept  neutral  vessels. 

Section  3.    Disregard  of  American  Citizenship  Papers  and 

Passports 

In  the  early  part  of  the  war  there  were  charges  and  counter- 
charges of  the  violation  of  American  passports,  and  the  arrest  by 
British  authorities  of  any  person  bearing  an  American  passport 
was  promptly  called  to  the  attention  of  the  American  Government. 
The  Department  of  State  said,  over  Mr.  Bryan's  signature,  that 
"American  citizenship  papers  have  been  disregarded  in  a  compara- 
tively few  instances  by  Great  Britain,  but  the  same  is  true  of  all 
the  belligerents.  Bearers  of  American  passports  have  been  arrested 
in  all  the  countries  at  war.  In  every  case  of  an  apparent  illegal 
arrest  the  United  States  Government  has  entered  vigorous  protests 

^  Official  text,  American  Journal  of  International  Laic,  Special  Supplement, 
October,    1916,   pp.   385-386. 

2  Mr.  Seward,  Secretary  of  State,  to  Lord  Lyons,  British  Minister,  July  29, 
1863.  Manuscript  Notes  to  Great  Britain,  vol.  10,  p.  175.  Quoted  from  Moore, 
International  Law  Digest,  vol.  7,  p.  935. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     117 

with  request  for  release.  The  Department  does  not  know  of  any 
eases,  except  one  or  two  which  are  still  under  investigation,  in  which 
naturalized  Germans  have  not  been  released  upon  representations 
by  this  Government.  There  have,  however,  come  to  the  Department's 
notice  authentic  cases  in  which  American  passports  have  been  fraudu- 
lently obtained  and  used  by  certain  German  subjects. ' ' ' 

Even  at  this  early  date  it  was  clear  that  American  passports  were 
being  systematically  misused  by  German  authorities,  and  ugly  rumors 
were  afloat  that  passports  were  fraudulently  prepared  by  or  with 
the  connivance  of  German  authorities  in  the  United  States.  Mr. 
Bryan  felt  justified  in  saying,  within  the  first  six  months  of  the 
war,  that  "The  Department  of  Justice  has  recently  apprehended  at 
least  four  persons  of  German  nationality  who,  it  is  alleged,  obtained 
American  passports  under  pretense  of  being  American  citizens  and 
for  the  purpose  of  returning  to  Germany  without  molestation  by  her 
enemies  during  the  voyage."  Indeed,  he  continued,  in  language 
which  subsequent  events  have  unfortunately  more  than  justified, 
"There  are  indications  that  a  systematic  plan  has  been  devised  to 
obtain  American  passports  through  fraud  for  the  purpose  of  secur- 
ing safe  passage  for  German  officers  and  reservists  desiring  to  return 
to  Germany. ' ' ' 

It  is  not  necessary  to  dwell  upon  this  phase  of  the  subject  to 
show  how  vigilant  and  how  vigorous  the  Government  was  in  pro- 
testing the  arrest  of  bearers  of  American  passports,  as  the  Depart- 
ment has  solemnly  assured  the  American  public  and  foreign  Nations 
by  the  publication  of  this  note  that  this  is  so.  In  view  of  judicial 
proceedings  which  were  begun  in  American  courts,  taxing  German 
subjects  with  fraudulently  procuring  and  manufacturing  passport^ 
in  the  United  States  in  furtherance  of  German  interests  during  the 
war,  and  the  implication  of  officials  of  the  German  Embassy  in  such 
fraudulent  transactions,  the  conviction  of  persons  indicted  who  had 
cooperated  with  and  worked  under  the  orders  of  officials  of  the 
Imperial  German  Embassy,  and  the  dismissal  of  the  German  naval 
and  military  attaches  for  complicity  in  such  transactions,  and  others 
even  more  reprehensible,  it  does  not  seem  to  be  necessary  to  descant 
upon  this  subject  at  the  instance  of  charges  preferred  by  German 
officials  or  German  sympathizers  in  the  United  States. 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  262. 


118        A  SURVEY  OF  INTERNATIONAL  RELATIONS 
Section  4.  Change  op  Policy  in  Regard  to  Loans  to  Belligerents 

Shortly  after  the  outbreak  of  the  war  it  was  decided  by  the  Gov- 
ernment, at  the  instance  of  Secretary  Bryan,  to  discountenance  and 
if  possible  to  prevent  loans  made  by  American  citizens  to  belligerent 
Governments.  It  is,  of  course,  forbidden  by  international  law  for 
countries  as  such  to  lend  money  to  belligerents,  for  such  an  act  is 
equivalent  to  participation  in  hostilities.  International  law  allows  the 
citizens  or  subjects  of  neutral  countries  to  sell  supplies  and  to  lend 
moneys  to  the  belligerents,  which  would  be  improper  in  their  Gov- 
ernments, drawing  a  clean-cut  distinction  between  the  action  of  the 
Government  on  the  one  hand  and  the  act  of  the  individual  on  the 
other.  For  some  time  past,  however,  there  has  been  considerable 
discussion  as  to  the  advisability  of  permitting  citizens  or  subjects  of 
neutral  countries  to  lend  money  to  foreign  Governments  engaged  in 
war,  apparently  on  the  theory  that  the  act  itself  is  unneutral,  as, 
where  one's  treasure  is,  one's  heart  is  likewise  supposed  to  be,  and 
a  lender  of  money  to  a  country  is  naturally  desirous  that  that  coun- 
try be  successful  and  may  be  inclined  to  do  more  than  pray  for  its 
success.  It  is  alleged  that  loans,  in  addition  to  being  unneutral,  tend 
to  prolong  the  war — for  is  not  money  called  the  sinews  of  war? — 
just  as,  in  the  same  way,  arms  and  ammunition  furnished  to  the 
belligerents  are  said  to  prolong  war.  This  may  indeed  be  so,  but  if 
so,  Secretary  Lansing's  defense  of  the  manufacture,  the  sale,  and  the 
export  of  arms  and  ammunition  by  neutral  subjects  or  citizens  to 
belligerent  countries  is  applicable  to  each  transaction,  and  a  failure 
to  allow  a  country  which  had  followed  the  ways  of  peace  to  borrow 
money  on  the  outbreak  of  war  with  which  to  procure  the  means  of 
defense,  would  be  to  enable  the  country,  which  had  in  times  of  peace 
hoarded  its  wealth  and  realized  upon  its  credit  and  which  was  armed 
to  the  teeth,  to  crush  its  opponent  before  it  had  the  opportunity  of 
preparing  itself  to  meet  the  blow. 

As  previously  stated,  upon  the  outbreak  of  the  war  the  United 
States  frowned  upon  the  attempts  of  foreign  Governments  to  place 
loans  in  the  United  States,  and  informed  prospective  lenders  of 
money  that  they  need  not  expect  the  protection  of  their  Govern- 
ment in  the  event  of  trouble  with  belligerents.  The  following  notice 
yras  given  out  by  the  Department  of  State  to  the  press: 

Inquiry  having  been  made  as  to  the  attitude  of  this  Govern- 
ment in  case  American  bankers  were  asked  to  make  loans  to 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      119 

foreign  Governments  during  the  war  in  Europe,  the  following 
announcement  is  made: 

There  is  no  reason  why  loans  should  not  be  made  to  the 
Governments  of  neutral  nations,  but  in  the  judgment  of  this 
Government  loans  by  American  bankers  to  any  foreign  nation 
which  are  at  war  is  inconsistent  with  the  true  spirit  of  neutrality/ 

An  attempt  was  made  to  distinguish  between  loans  to  belligerent 
Governments,  on  the  one  hand,  and  sales  of  contraband  on  the  other, 
but  Secretary  Lansing's  statement  in  the  Austrian  note  is  to  be  pre- 
ferred. It  is  better  to  admit  frankly  and  without  reservation  that 
the  policy—in  regard  to  loans  to  belligerents  was  changed  in  order 
to  bring  the  policy  of  American  citizens  into  harmony  with  inter- 
national law  as  it  then  existed  and  as  it  now  exists.  The  money 
market  of  the  United  States  has  been  open  to  any  belligerent  since 
this  change  of  policy.  Germany  has  been  free  to  avail  itself  of  it  as 
Great  Britain  and  France  were  free.  Moneys  have  been  raised  in 
the  United  States  and  sent  to  each  of  these  countries,  and  German, 
French,  and  English  loans  have  been  floated  in  the  United  States. 

Section  5.    Indifference  to  Confinement  of  Noncombatants  in 
Detention  Camps  in  England  and  France 

It  is  dangerous  as  well  as  bad  form  for  a  neutral  country  to 
meddle  in  what  is  peculiarly  regarded  as  the  business  of  belligerents. 
It  is,  in  the  first  place,  difficult  to  determine  in  any  given  case  whether 
a  person  is  a  combatant  or  a  noncombatant,  and  it  is  somewhat  pre- 
suming on  the  part  of  a  neutral  to  attempt  to  determine  for  the  bellig- 
erents the  treatment  to  be  accorded  to  noncombatants  in  camps  in 
which  belligerents  have  determined  to  detain  them.  The  fact,  there- 
fore, that  a  neutral  nation  does  not  intervene  in  such  matters  may 
properly  be  attributed  to  other  motives  than  those  of  indifference. 
And  yet,  notwithstanding  the  delicacy  of  the  subject,  the  United 
States  did,  as  a  matter  of  fact,  endeavor  to  investigate  conditions  in 
such  camps,  with  the  results  stated  by  Secretary  Bryan  in  the  follow- 
ing passage  of  his  letter  to  Senator  Stone : 

As  to  the  detention  of  noncombatants  confined  in  concentra- 
tion camps,  all  the  belligerents,  with  perhaps  the  exception  of 
Servia  and  Russia,  have  made  similar  complaints  and  those  for 
whom  this  Government  is  acting  have  asked  investigations,  which 
representatives  of  this  Government  have  made  impartially.  Their 

1  Statement  to  the  press,  Dept.  of  State,  August  16,  1914. 


120        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

reports  have  shown  that  the  treatment  of  prisoners  is  generally 
as  good  as  possible  under  the  conditions  in  all  countries,  and 
that  there  is  no  more  reason  to  say  that  they  are  mistreated  in 
one  country  than  in  another  country  or  that  this  Government  has 
manifested  an  indifference  in  the  matter.  As  this  Department's 
efforts  at  investigations  seemed  to  develop  bitterness  between  the 
countries,  the  Department  on  November  29  sent  a  circular  instruc- 
tion to  its  representatives  not  to  undertake  further  investigation 
of  concentration  camps. 

But  at  the  special  request  of  the  German  Government  that 
Mr.  Jackson,  former  American  Minister  at  Bucharest,  now 
attached  to  the  American  Embassy  at  Berlin,  make  an  investi- 
gation of  the  prison  camps  in  England,  in  addition  to  the  inves- 
tigations already  made,  the  Department  has  consented  to  dis- 
patch Mr.  Jackson  on  this  special  mission.^ 


Section  6.  Failure  to  Prevent  Transshipment  of  British  Troops 

AND  War  Material  Across  the  Territory  of 

the  United  States 

There  can  be  no  doubt  that  an  attempt  to  send  British  troops 
or  war  material  through  the  United  States  would  be  an  interference 
on  the  part  of  British  authorities  with  American  sovereignty,  and, 
as  far  as  Great  Britain's  enemies  were  concerned,  permission  to 
British  authorities  so  to  do  would  be  regarded,  and  properly,  as  a 
violation  of  neutrality.  These  principles  are  so  well  recognized  that 
it  seems  a  waste  of  time  and  space  to  quote  them.  The  Convention 
respecting  the  rights  and  duties  of  neutral  Powers  and  persons  in 
war  on  land,  adopted  by  the  Second  Hague  Peace  Conference  on 
October  18,  1907,  and  ratified  by  most  of  the  Powers,  including  Ger- 
many and  the  United  States,^  provides  (Article  1)  that  the  terri- 
tory of  neutral  Powers  is  inviolable  and  the  second  article  provides 
that  belligerents  are  forbidden  to  move  troops  or  convoys  of  either 
munitions  of  war  or  supplies  across  the  territory  of  a  neutral  Power. 
And  in  the  fifth  article  a  neutral  Power  is  likewise  forbidden  to 
allow  any  of  the  acts  referred  to  in  Article  2  to  take  place  within 
its  territory. 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  264. 

2  This  Convention,  which  was  not  ratified  by  Great  Britain,  contains  the 
clause  that  no  belligerents  are  bound  by  it  unless  all  the  belligerents  are  con- 
tracting parties.  But  in  the  matter  of  neutrality,  the  Convention  is  declara- 
tory, not  amendatory,  of  the  law  of  Nations,  and  for  this  reason  its  provisions 
may  be  referred  to  in  this  connection.  The  Hague  Conventions  and  Declarations 
of  1899  and  1907,  pp.  133-139. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     121 

On  the  matter  of  the  passage  of  troops,  Mr.  Bryan  thus  speaks 
in  his  letter: 

The  Department  has  had  no  specific  case  of  the  passage  of 
convoys  of  troops  across  American  territory  broiight  to  its  notice. 
There  have  been  rumors  to  this  effect,  but  no  actual  facts  have 
been  presented.  The  transshipment  of  reservists  of  all  belliger- 
ents who  have  requested  the  privilege  has  been  permitted  on  con- 
dition that  they  travel  as  individuals  and  not  as  organized,  uni- 
formed, or  armed  bodies.  The  German  Embassy  has  advised  the 
Department  that  it  would  not  be  likely  to  avail  itself  of  the 
privilege,  but  Germany's  ally,  Austria-Hungary,  did  so.' 

In  regard  to  the  shipment  of  war  material  through  American 
territory.  Secretary  Bryan's  note  states  that  the  question  was  only 
raised  once  by  the  Canadian  Government  to  be  denied  by  the  United 
States.^ 

It  should  be  said  in  this  connection  that  the  United  States  has 
been  so  solicitous  to  maintain  its  neutrality  that  it  requested  the 
British  Government  not  to  send  by  rail  across  the  State  of  Maine 
Canadian  sick  and  wounded  returning  from  the  war,  on  the  ground 
that,  although  individuals  might  freely  cross  our  territory,  detach- 
ments stood  in  a  different  category,  and  this  although  the  sick  and 
wounded  for  whom  permission  was  asked  had  been  discharged  because 
of  unfitness  for  further  service. 


Section  7.    Internment  of  German  Steamship  ''Geier"  and  the 
Collier  "Locksun"  at  Honolulu 

On  October  15,  1914,  the  German  gunboat  Geier  arrived  in  Hono- 
lulu, and  its  captain  requested  permission  to  take  on  coal,  claiming  a 
port  in  Southwest  Africa  as  its  nearest  home  port,  and  to  make 
necessary  repairs,  which  it  was  estimated  would  require  a  week  to 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  264. 

2  The  Collector  of  Customs  of  Juneau,  Alaska,  telegraphed  the  Treasury 
Department  on  August  31,  1914,  "May  shipment  of  war  ammunition  and  equip- 
ment belonging  to  Canadian  Government  pass  in  transit  through  Alaska  from 
Dawson  to  Vancouver  ?  "  and  the  Customs  Division  of  the  Treasury  Depart- 
ment, in  explanation  of  this  request,  stated  that  "  The  only  way  in  which  mer- 
chandise of  any  kind  can  pass,  or  does  pass,  between  Canada  and  Dawson,  or 
other  points  in  British  Yukon,  is  in  transit  across  American  territory  under 
the  customs  regulations  under  which  the  merchandise  is  sealed."  To  this  request 
and  under  these  circumstances  the  United  States  answered  in  the  negative. 
M8S.  Opinions,  Joint  State  and  Navy  Neutrality  Board. 


122        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

complete.  Under  the  President's  proclamation  and  in  accordance 
with  international  law,  men-of-war  were  to  be  allowed  to  enter  and 
to  remain  in  American  jurisdiction  for  the  period  of  twenty-four 
hours,  to  take  on  supplies  necessary  for  immediate  use,  to  load  a 
sufficient  quantity  of  coal  to  enable  the  vessel  to  reach  the  nearest 
home  port,  to  remain  for  a  longer  period  than  twenty-four  hours  to 
make  necessary  repairs,  and  not  to  receive  further  supplies  without 
special  permission  within  three  months  unless  the  war  vessel  had,  in 
the  interval,  entered  a  port  of  the  Government  to  which  it  belongs. 
The  Hague  Convention  of  October  18,  1907,  concerning  the  Rights 
and  Duties  of  Neutral  Powers  in  Naval  "War,  is  declaratory  of  inter- 
national law  and  of  international  practice  in  these  matters,  and  its 
provisions  are  therefore  quoted  irrespective  of  the  clause  that  it  is 
only  binding  in  case   all  the  belligerents   are  contracting  parties: 

Article  9.  A  neutral  Power  must  apply  impartially  to  the 
two  belligerents  the  conditions,  restrictions,  or  prohibitions  made 
by  it  in  regard  to  the  admission  into  its  ports,  roadsteads,  or 
territorial  waters,   of  belligerent  war-ships  or   of  their  prizes. 

Nevertheless,  a  neutral  Power  may  forbid  a  belligerent  vessel 
which  has  failed  to  conform  to  the  orders  and  regulations  made 
by  it,  or  which  has  violated  neutrality,  to  enter  its  ports  or  road- 
steads. 

Article  14.  A  belligerent  war-ship  may  not  prolong  its  stay 
in  a  neutral  port  beyond  the  permissible  time  except  on  account 
of  damage  or  stress  of  weather.  It  must  depart  as  soon  as  the 
cause  of  the  delay  is  at  an  end. 

Article  17.  In  neutral  ports  and  roadsteads  belligerent  war- 
ships may  only  carry  out  such  repairs  as  are  absolutely  neces- 
sary to  render  them  seaworthy,  and  may  not  add  in  any  manner 
whatsoever  to  their  fighting  force.  The  local  authorities  of  the 
neutral  Power  shall  decide  what  repairs  are  necessary,  and  these 
must  be  carried  out  with  the  least  possible  delay. 

Article  18.  Belligerent  war-ships  may  not  make  use  of  neu- 
tral ports,  roadsteads,  or  territorial  waters  for  replenishing  or 
increasing  their  supplies  of  war  material  or  their  armament,  or 
for  completing  their  crews. 

Article  19.  Belligerent  war-ships  may  only  revictual  in  neu- 
tral ports  or  roadsteads  to  bring  up  their  supplies  to  the  peace 
standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable 
them  to  reach  the  nearest  port  in  their  own  country.    They  may, 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      123 

on  the  other  hand,  fill  up  their  bunkers  built  to  carry  fuel,  when 
in  neutral  countries  which  have  adopted  this  method  of  deter- 
mining the  amount  of  fuel  to  be  supplied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the 
ships  are  not  supplied  with  coal  within  twenty-four  hours  of  their 
arrival,  the  permissible  duration  of  their  stay  is  extended  by 
twenty-four  hours. 

Article  20.  Belligerent  war-ships  which  have  shipped  fuel  in 
a  port  belonging  to  a  neutral  power  may  not  within  the  suc- 
ceeding three  months  replenish  their  supply  in  a  port  of  the 
same  power.^ 

It  is,  of  course,  for  the  neutral  to  determine  the  quantity  of  sup- 
plies which  a  belligerent  vessel  enjoying  the  hospitality  of  its  port 
shall  receive  and  the  nature  and  extent  of  the  repairs  which  it  may 
make  under  the  supervision  of  the  local  authorities,  and  the  amount 
of  fuel,  whether  it  be  coal  or  oil,  which  the  vessel  may  take  on.  Other- 
wise the  neutral  port  might  be  used  as  a  base  of  hostile  operations 
and,  because  of  its  sojourn  in  neutral  waters,  the  belligerent  vessel 
of  war  might  quit  neutral  waters  in  order  to  engage  in  hostile  oper- 
ations. In  the  case  of  The  Geier  the  time  was  extended  from  one 
week  to  three  weeks  and  the  third  day  of  November  was  fixed  either 
for  the  departure  or  internment  of  the  vessel.  The  presence  of  a 
Japanese  cruiser  off  Honolulu  decided  the  matter.  The  Geier' s  cap- 
tain asked  to  be  interned  and  the  United  States  interned  the  vessel. 
As  internment  is  a  modem  and  indeed,  it  may  be  said,  an  American 
practice,  and  as  some  important  questions  were  raised  in  connection 
with  The  Geier  and  its  crew  after  internment,  it  may  be  well  to 
enlarge  somewhat  upon  this  subject. 

The  leading  case  of  this  kind  is  that  of  The  Lena,  a  Russian  trans- 
port or  auxiliary  cruiser,  which  entered  the  harbor  of  San  Francisco 
September  11,  1904,  during  the  war  between  Japan  and  Russia.  Later 
the  Japanese  Minister  was  instructed  by  his  Government  to  call  the 
attention  of  the  United  States  to  the  arrival  of  the  vessel  and  to  say, 
as  he  did  two  days  later,  "that  the  Imperial  Government  expect  that 
appropriate  measures  regarding  the  matter  will  be  taken  by  the 
United  States  Government  without  delay. "  ^  On  the  same  day  the 
Russian  Ambassador  informed  the  Department  of  State  that  the 
condition  of  the  boilers  of  the  vessel  and  other  damages  would  not 
permit  it  to  continue  its  voyage,  and  expressed  the  opinion  that 

'  The  Hague  Conventions  and  Declarations  of  1899  and  1907,  pp.  211  et  seq. 
^Foreign  Relations  of  the  United  States,  1904,  p.  428. 


124        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

"The  Lena  will  receive  from  the  authorities  of  San  Francisco,  and 
in  conformity  with  the  prescriptions  of  international  law  to  which  a 
vessel  in  her  condition  is  entitled,  all  aid  compatible  with  the  neutral- 
ity proclaimed  by  the  Federal  Government. ' ' '  The  Russian  Am- 
bassador was  informed  on  the  14th  that: 

The  President  feels  constrained  to  reach  an  immediate  solu- 
tion of  the  question  whether  The  Lena  shall  be  repaired  immedi- 
ately so  as  to  put  to  sea  or  be  disarmed  and  laid  up  until  the 
close  of  the  war.  If  repaired,  only  such  bare  repairs  can  be 
allowed  as  may  be  necessary  for  seaworthiness  and  for  taking 
her  back  to  nearest  home  port,  and  even  such  repairs  can  be 
permitted  only  on  condition  that  they  do  not  prove  to  be  too 
expensive.  .  .  .  Inspection  made  by  United  States  officers  at 
San  Francisco  discloses  that  the  repairs  asked  for  include  com- 
plete outfit  of  new  boilers  and  reconstruction  of  engines,  con- 
suming at  least  four  or  five  months,  or  according  to  the  captain's 
estimate  eight  months,  and  amounting  to  renovation  of  the  vessel. 
This  cannot  be  allowed  with  due  regard  to  neutrality.^ 

The  American  authorities  refused  to  consent  to  a  delay,  and  there 
was  really  no  alternative,  as  the  captain  of  The  Lena  stated  in  writing 
that  the  ship,  being  unseaworthy,  must  disarm,  and  asked  to  be 
allowed  to  make  the  needed  repairs.  Thereupon,  on  the  15th,  the 
Department  of  State  telegraphed  the  Russian  Ambassador  that: 

The  President  has  this  afternoon  issued  an  order  directing 
that  the  Russian  armed  transport  Lena,  now  at  San  Francisco, 
be  taken  in  custody  by  the  naval  authorities  of  the  United  States 
and  disarmed,  under  the  following  conditions: 

First.  Vessel  to  be  taken  to  Mare  Island  Navy-Yard  and 
there  disarmed  by  removal  of  small  guns,  breechblocks  of  large 
guns,  small  arms,  ammunition  and  ordnance  stores,  and  such 
other  dismantlement  as  may  be  prescribed  by  the  commandant 
of  the  navy-yard. 

Second.  Written  guarantee  that  Lena  shall  not  leave  San 
Francisco  until  peace  shall  have  been  concluded.  Officers  and 
crew  to  be  paroled,  not  to  leave  San  Francisco  until  some  other 
understanding  as  to  their  disposal  may  be  reached  between  this 
Government   and   both   belligerents. 

Third.  After  disarmament,  vessel  may  be  removed  to  private 
dock  for  such  reasonable  repairs  as  will  make  her  seaworthy  and 
preserve  her  in  good  condition  during  detention,  or  be  so  repaired 
at  the  navy -yard,  should  the  Russian  commander  so  elect.    While 

'  Foreign  Relations  of  the  United  States,  1904,  p.  785. 
2  Ibid.,  pp.  785-786. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      125 

at  private  dock  the  commandant  of  the  navy-yard  at  Mare  Island 
shall  have  custody  of  the  ship,  and  the  repairs  shall  be  overseen 
by  an  engineer  officer  to  be  detailed  by  commandant  of  navy- 
yard. 

Fourth.  The  cost  of  repairs,  of  private  docking,  and  of  main- 
tenance of  the  ship  and  her  officers  and  crew  while  in  custody 
to  be  borne  by  the  Russian  Government,  but  the  berthing  at 
Mare  Island  and  the  custody  and  surveillance  of  the  vessel  to 
be  borne  by  the  United  States. 

Fifth.  When  repaired,  if  peace  shall  not  then  have  been  con- 
cluded, the  vessel  to  be  taken  back  to  Mare  Island  and  there  held 
in  custody  until  the  end  of  the  war.^ 

This  action  of  the  United  States  has  commended  itself  to  the 
world  at  large,  to  such  an  extent,  indeed,  that  at  the  Second  Hague 
Peace  Conference  of  1907  it  was  embodied  in  the  following  language 
as  Article  24  of  the  Convention  concerning  the  rights  and  duties  of 
neutral  Powers  in  naval  war : 

If,  notwithstanding  the  notification  of  the  neutral  Power,  a 
belligerent  ship  of  war  does  not  leave  a  port  where  it  is  not 
entitled  to  remain,  the  neutral  Power  is  entitled  to  take  such 
measures  as  it  considers  necessary  to  render  the  ship  incapable 
of  taking  the  sea  during  the  war,  and  the  commanding  officer 
of  the  ship  must  facilitate  the  execution  of  such  measures. 

When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the 
officers  and  crew  are  likewise  detained. 

The  officers  and  crew  thus  detained  may  be  left  in  the  ship 
or  kept  either  on  another  vessel  or  on  land,  and  may  be  sub- 
jected to  the  measures  of  restriction  which  it  may  appear  neces- 
sary to  impose  upon  them.  A  sufficient  number  of  men  for  look- 
ing after  the  vessel  must,  however,  be  always  left  on  board. 

The  officers  may  be  left  at  liberty  on  givmg  their  word  not 
to  quit  the  neutral  territory  without  permission.^ 

In  the  case  of  The  Geier  the  question  arose  as  to  whether  the  offi- 
cers and  crew  should  be  considered  as  individuals,  and  thus  allowed 
a  very  large  degree  of  personal  freedom,  or  whether  they  should 
be  considered  as  members  of  an  armed  force  and  to  be  treated  as  a 
unit.  The  Government  very  properly  decided  that,  while  not  pris- 
oners, they  were  nevertheless  to  be  treated  as  an  organized  force  of 
a  belligerent  permitted  to  remain  by  courtesy  but  subject  to  the 
supervision  and  control  of  the  American  authorities. 

A  further  question  arose  in  the  matter  of  coal  to  be  supplied  to 

^  Foreign  Relations  of  the  United  States,  1904,  p.  787. 

2  The  Hague  Conventions  and  Declarations  of  1899  and  1907,  p.  214. 


126        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  vessel,  as  it  appeared  that  it  could  not  obtain  from  private  sources 
the  coal  needed  for  its  daily  needs.  The  question  was  unusual  and 
delicate,  inasmuch  as  it  would,  under  ordinary  circumstances,  be  an 
unneutral  act  on  the  part  of  the  United  States  to  supply  belliger- 
ents with  contraband  of  war.  But  the  circumstances  of  this  case 
were  extraordinary.  The  Geier  was,  to  be  sure,  the  property  of  the 
Imperial  German  Government,  but  it  was  interned  within  American 
jurisdiction  during  the  continuance  of  war  and  was  therefore  in  the 
custody  of  the  United  States.  As  an  act  of  courtesy  The  Geier  was 
therefore  furnished  by  the  Government  from  its  own  supplies  with 
the  amount  of  coal  necessary  for  its  daily  needs. 

Finally,  the  question  presented  itself  as  to  whether  the  crew  of  The 
Geier  should  receive  parcels  free  from  custom  duties.  If  prisoners  of 
war,  they  would  be  so  entitled  under  Article  16  of  The  Hague  Con- 
vention of  1907  concerning  the  Laws  and  Customs  of  War.  The  ques- 
tion was  indeed  novel,  as  stated  by  the  Imperial  German  Ambassador, 
and  after  careful  consideration  of  this  question  Secretary  Lansing,  on 
July  27,  1915,  delivered  to  the  German  Ambassador  the  following 
memorandum,  which  settles  the  status  of  interned  persons  in  a  neutral 
country  in  so  far  as  such  a  status,  which  is  of  interest  to  the  society 
of  Nations,  can  be  determined  by  one  country : 

The  Department  of  State  acknowledges  the  receipt  of  the 
memorandum  of  the  Imperial  German  Embassy,  dated  July  8, 
1915,  in  which,  with  reference  to  previous  correspondence,  con- 
cerning import  duties  levied  on  certain  of  the  articles  sent  by 
mail  to  the  German  war  vessel  Geier,  inquiry  is  made  as  to  the 
attitude  of  the  Treasury  Department  in  the  matter. 

In  reply  the  Department  of  State  informs  the  Imperial  Ger- 
man Embassy  that  a  letter  has  been  received  from  the  Secretary 
of  the  Treasury  on  the  subject,  from  which  it  appears  that  hia 
Department  knows  of  no  statute  or  treaty  under  which  articles 
60  addressed  would  be  exempt  from  duty,  and  that  it  has  issued 
no  regulations  in  this  relation. 

The  Secretary  of  the  Treasury  points  out  that  Article  16, 
chapter  2,  of  section  1  of  The  Hague  Convention  respecting  the 
Laws  and  Customs  of  War  on  Land  (36  Stat.,  p.  2277)  provides 
that  presents  and  relief  in  kind  for  prisoners  of  war  must  be 
admitted  free  of  all  import  or  other  duties ;  and  that  the  Attorney- 
General  of  the  United  States  held,  in  the  case  of  interned  Mexican 
soldiers,  that  they  were  not  prisoners  of  war  within  the  meaning 
of  the  said  Convention.  The  Treasury  Department  holds  to  that 
opinion.  Therefore,  as  the  status  of  the  officers  and  members 
oS.  the  crew  of  The  Geier  in  this  respect  is  the  same  as  that  of  the 
Mexican  soldiers  referred  to,  the  action  of  the  customs  officers 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      127 

at  Honolulu  in  examining  packages  and  assessing  duty  thereon 
is  correct.^ 

In  connection  with  The  Geier  a  question  was  raised  as  to  the  treat- 
ment to  be  accorded  to  The  Locksun,  which  appears  to  have  met  and  to 
have  coaled  Tlie  Geier  upon  the  high  seas  and  to  have  followed  it 
into  Honolulu.  The  Locksun  was  a  German  vessel.  If  it  were  a 
merchant  vessel  it  would  have  been  able  to  enter  Honolulu,  to  take 
on  cargo,  and  to  withdraw  at  its  pleasure.  If,  on  the  contrary,  it 
was  to  be  treated  as  a  man-of-war,  it  could  only  properly  enjoy  the 
limited  hospitality  of  the  port.  The  facts  were  that  The  Locksun 
had  coaled  The  Geier  upon  the  high  seas  and  that  it  was  therefore 
not  to  be  looked  upon  as  a  merchant  vessel  in  the  ordinary  sense 
of  the  word,  nor  as  a  vessel  of  war,  irrespective  of  its  connection  with 
The  Geier.  The  question  of  its  nature  and  of  its  treatment  was  care- 
fully considered  by  the  Department  of  State,  and  it  was  held  to  be 
a  tender  to  The  Geier  in  accordance  with  the  Geneva  award  in  the  case 
of  The  Alabama,  which,  in  so  far  as  it  is  material,  reads  as  follows: 

And  so  far  as  relates  to  the  vessels  called  The  Tuscaloosa 
(tender  to  The  Alabama),  The  Clarence,  The  Tacony,  and 
The  Archer  (tenders  to  The  Florida),  the  tribunal  is  unani- 
mously of  opinion  that  such  tenders  or  auxiliary  vessels,  being 
properly  regarded  as  accessories,  must  necessarily  follow  the  lot 
of  their  principals,  and  be  submitted  to  the  same  decision  which 
applies  to  them  respectively.^ 

The  action  taken  and  the  reason  for  such  action  in  the  case  of 
The  Locksun  are  thus  stated  in  the  following  passage  from  the  note 
of  Mr.  Lansing,  when  Counselor  of  the  Department  of  State,  to  the 
German  Ambassador,  dated  November  16,  1914: 

In  reply  to  your  note  of  the  11th  instant,  inquiring  on  which 
rule  or  regulation  the  internment  of  the  German  ship  Locksun 
is  based,  I  would  advise  you  that  The  Locksun  has  been  interned 
on  the  principle  that  she  has  been  acting  as  a  tender  to  the 
German  warship  Geier,  as  the  facts  set  forth  in  my  note  of  the 
7th  instant  substantiate.  If,  under  the  circumstances,  The  Locksun 
has  been  in  fact  a  tender  to  The  Geier,  the  question  involved 
does  not  relate  to  the  amount  of  coal  which  either  The  Locksun 
or  The  Geier  has  taken  on  within  three  months,  but  rather 
relates  to  the  association  and  cooperation  of  the  two  vessels  in 

'  M88.  Opinions,  Joint  State  and  Navy  Neutrality  Board. 
2  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  251. 


128        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

belligerent  operations.  The  Locksiin,  having  been  shown  to  have 
taken  the  part  of  a  supply  ship  for  The  Geier,  is,  in  the  opinion 
of  this  Government,  stamped  with  the  belligerent  character  of 
that  vessel,  and  has  really  become  a  part  of  her  equipment.  In 
this  situation  it  is  difficult  to  understand  on  what  basis  it  would 
have  been  possible  to  distinguish  between  the  two  vessels,  so  as  to 
intern  the  one  and  not  the  other.  This  Government,  therefore, 
has  taken  what  appears  to  it  to  be  the  only  reasonable  course, 
under  the  circumstances,  and  directed  that  both  vessels  be 
interned.' 

The  doctrine  thus  laid  down  in  a  case  involving  Germany  was, 
upon  the  request  of  the  German  Ambassador,  applied  to  Great 
Britain.  Thus,  in  a  note  of  December  21,  1914,  addressed  to  Mr. 
Lansing  as  Counselor,  the  German  Ambassador  stated  that  "the 
British  S.S.  Mallina  and  Tremeadow,  who  served  as  tenders  to  British 
cruisers,  now  demand  to  be  allowed  to  coal  in  Panama  and  to  leave 
for  Australia,  alleging  that  they  have  ceased  to  be  tenders  of  British 
warships."  On  this  statement  of  facts  the  Ambassador  called 
Mr.  Lansing 's  attention  to  the  fact  that,  ' '  as  far  as  can  be  seen  from 
here,  their  ease,  in  the  principal  points,  is  identical  with  the  case 
of  the  German  steamship  Locksun."  On  the  23d  of  the  same  month 
Mr.  Lansing  as  Counselor  wrote  as  follows  to  the  German  Ambassador : 

In  reply  to  your  note  of  the  21st  instant,  with  reference  to 
the  British  S.S.  Mallina  and  Tremeadow,  which  you  state 
have  served  as  tenders  to  British  cruisers,  and  are  demanding 
coal  in  the  Panama  Canal  Zone,  I  would  advise  you  that  these 
vessels  have  been  considered  by  the  Canal  authorities  as  coming 
under  Rule  2  of  the  President's  proclamation  of  November  13 
last  in  relation  to  the  neutrality  of  the  Panama  Canal  Zone, 
which  accords  to  transports  or  fleet  auxiliaries  the  same  treat- 
ment as  that  given  to  belligerent  vessels  of  war.^ 


Section  8.    Coaling  of  "Warships  in  Panama  Canal  Zone 

The  proclamation  of  neutrality  issued  by  the  President  stated  the 
principles  whose  observance  the  United  States  would  require  from 
belligerents  during  the  course  of  the  war  and  the  treatment  which 
the  United  States  would,  in  accordance  wnth  the  law  of  Nations, 
accord  to  belligerents  in  appropriate  cases.     It  was  recognized  that 

'  OflScial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.  247-248. 
zibid.,  p.  209. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      129 

the  Panama  Canal  Zone,  although  subject  to  the  jurisdiction  of  the 
United  States,  required  very  special  regulation  in  order  that  its 
neutrality  might  not  be  compromised  and  that  it  might  not,  by 
becoming  a  base  of  hostile  operations,  suffer,  because  of  its  geographi- 
cal position,  by  the  acts  or  operations  of  the  belligerents.  It  was 
also  recognized  that  the  Republic  of  Panama  was  deeply  interested 
in  the  regulations  concerning  neutrality  which  the  United  States 
might  draft  and  promulgate  concerning  the  use  of  the  Canal  during 
the  war,  and  because  of  this  fact  a  protocol  was  concluded  by 
Mr.  Lansing,  then  Counselor  and  Acting  Secretary  of  State,  with 
the  Panama  Minister  to  the  United  States.  On  October  10,  1914, 
after  reciting  the  close  association  of  the  interests  of  their  respec- 
tive Governments  and  that  the  neutral  obligations  of  both  Govern- 
ments as  neutrals  might  be  maintained  during  the  war,  the  two 
Governments  agreed  upon  the  following  article: 

That  hospitality  extended  in  the  waters  of  the  Republic  of 
Panama  to  a  belligerent  vessel  of  war  or  a  vessel  belligerent  or 
neutral,  whether  armed  or  not,  which  is  employed  by  a  belliger- 
ent power  as  a  transport  or  fleet  auxiliary  or  in  any  other  way 
for  the  direct  purpose  of  prosecuting  or  aiding  hostilities,  whether 
by  land  or  sea,  shall  serve  to  deprive  such  vessel  of  like  hos- 
pitality in  the  Panama  Canal  Zone  for  a  period  of  three  months, 
and  vice  versa} 

"Without  an  understanding  of  this  kind  a  belligerent  war  vessel 
could  enjoy  the  hospitality  of  the  Canal  Zone  and  immediately  there- 
after the  hospitality  of  Panama,  and  the  Zone  as  well  as  the  Republic 
would  be  liable  to  be  used  as  a  base  of  hostile  operations. 

It  was  charged  that  this  regulation  operated  to  the  advantage 
of  Great  Britain  and  to  the  disadvantage  of  Germany.  Secretary 
Bryan's  letter  of  January  20,  1915,  puts  the  question  on  its  proper 
basis  as  one  of  geography,  which  the  United  States  could  not  control. 
Thus  Mr.   Bryan  said: 

By  proclamation  of  November  13,  1914,  certain  special  re- 
strictions were  placed  on  the  coaling  of  warships  or  their  tenders 
or  colliers  in  the  Canal  Zone.  These  regulations  were  framed 
through  the  collaboration  of  the  State,  Navy,  and  War  Depart- 
ments and  without  the  slightest  reference  to  favoritism  to  the 
belligerents.  Before  these  regulations  were  proclaimed,  war 
vessels  could  procure  coal  of  the  Panama  Railway  in  the  zone 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  201. 


130        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

ports,  but  no  belligerent  vessels  are  known  to  have  done  so. 
Under  the  proclamation  fuel  may  be  taken  on  by  belligerent 
warships  only  with  the  consent  of  the  canal  authorities  and  in 
such  amounts  as  will  enable  them  to  reach  the  nearest  accessible 
neutral  port ;  and  the  amount  so  taken  on  shall  be  deducted  from 
the  amount  procurable  in  United  States  ports  within  three  months 
thereafter.  Now,  it  is  charged  the  United  States  has  shown  par- 
tiality because  Great  Britain  and  not  Germany  happens  to  have 
colonies  in  the  near  vicinity  where  British  ships  may  coal,  while 
Germany  has  no  such  coaling  facilities.  Thus,  it  is  intimated 
the  United  States  should  balance  the  inequalities  of  geographi- 
cal position  by  refusing  to  allow  any  warships  of  belligerents  to 
coal  in  the  canal  until  the  war  is  over.  As  no  German  war- 
ship has  sought  to  obtain  coal  in  the  Canal  Zone  the  charge  of 
discrimination  rests  upon  a  possibility  which  during  several 
months  of  warfare  has  failed  to  materialize.^ 

Section  9.   Failure  to  Protest  Against  the  Modification  of  the 
Declaration  of  London  by  the  British  Government 

Owing  to  the  geographical  situation  of  the  United  States  it  would 
only  be  indirectly  or  incidentally  affected  by  breaches  of  neutrality 
in  land  warfare,  whereas  it  was  likely  to  be  directly  affected  in  its 
neutral  rights  in  maritime  warfare  and  to  be  called  upon  to  maintain 
its  rights  as  a  neutral  over  belligerent  vessels  within  its  jurisdiction, 
to  perform  its  duties  as  a  neutral  toward  belligerent  vessels  and 
property  within  its  jurisdiction,  and  to  compel  obedience  to  the  laws 
of  neutrality  by  its  citizens  and  all  other  persons  residing  within  its 
jurisdiction. 

It  w^as  foreseen  that  difficulties  would  arise,  as  they  had  arisen 
when  only  two  nations  were  at  war,  and  that  they  would  be  many 
and  complicated,  given  the  number  of  belligerents  and  the  extent  of 
belligerent  operations.  The  United  States  felt  that  it  would  be 
highly  desirable  if  the  belligerents  would  agree  upon  a  definite  state- 
ment of  maritime  warfare.  The  United  States  expressed  its  willing- 
ness to  be  a  party  to  such  a  statement  for  the  purpose  and  during 
the  continuance  of  the  war,  and  suggested  the  Declaration  of 
London,  which  was  drafted  by  ten  leading  nations  in  conference  at 
London  during  the  winter  of  1908-09 — which  had  been  advised  and 
consented  to  by  the  Senate  of  the  United  States,  and  which  the  Gov- 
ernment was  willing  to  promulgate,  not  because  it  liked,  much  less 
approved,  all  the  provisions  of  this  document,  but  for  the  sake  of 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  265-266. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      131 

uniformity.  Therefore,  the  Government  of  the  United  States,  on 
August  6,  1914,  proposed  to  the  belligerents  that  they  should,  for 
the  purposes  of  the  war  and  during  its  continuance,  accept  and  apply 
the  principles  of  the  Declaration  of  London.  Great  Britain  and  its 
allies  were  willing  to  do  so  with  certain  specified  modifications; 
Germany  and  Austria-Hungary  were  willing  to  accept  the  Declara- 
tion as  it  was  if  their  enemies  accepted  it  in  its  entirety,  as  by 
Article  65  thereof  the  Declaration  was  to  be  accepted  as  a  whole, 
not  accepted  in  those  parts  which  were  favorable  and  rejected  in  those 
parts  which  were  unfavorable.     As  Great  Britain,  on  August  22, 

1914,  and  subsequently  its  allies,  refused  to  comply  with  the  require- 
ments of  Article  65,  the  United  States  withdrew  its  proposals  on 
October  22,  1914,  leaving  the  operations  of  the  belligerents  to  be  con- 
ducted and  to  be  tested  by  the  law  of  Nations  as  derived  from  the  usage 
and  practice  of  Nations.^  Mr.  Lansing's  note  withdrawing,  on  behalf 
of  the  United  States,  the  suggestion,  is  so  short  and  states  in  such 
clear  and  precise  terms  the  policy  to  be  followed  and  which  actually 
was  pursued  by  the  United  States,  that  it  is  here  quoted  in  full: 

Inasmuch  as  the  British  Government  consider  that  the  con- 
ditions of  the  present  European  conflict  make  it  impossible  for 
them  to  accept  without  modification  the  Declaration  of  London,, 
you  are  requested  to  inform  His  Majesty's  Government  that  in. 
the  circumstances  the  Government  of  the  United  States  feels: 
obliged  to  withdraw  its  suggestion  that  the  Declaration  of  Lon- 
don be  adopted  as  a  temporary  code  of  naval  warfare  to  be 
observed  by  belligerents  and  neutrals  during  the  present  war; 
that  therefore  this  Government  will  insist  that  the  rights  and 
duties  of  the  United  States  and  its  citizens  in  the  present  war 
be  defined  by  the  existing  rules  of  international  law  and  the 
treaties  of  the  United  States  irrespective  of  the  provisions  of 
the  Declaration  of  London;  and  that  this  Government  reserves 
to  itself  the  right  to  enter  a  protest  or  demand  in  each  case  in 
which  those  rights  and  duties  so  defined  are  violated  or  their 
free  exercise  interfered  with  by  the  authorities  of  His  Britannic 
Majesty's  Government.^ 

Subsequently  Great  Britain,  as  the  result  of  its  experience,  be- 

^  Secretary    of    State    to    Ambassador    Page,    Washington,    August    6,    1914; 
oflBcial  text,  American  Journal  of  International  Law,  Special  Supplement,  July, 

1915,  p.  1 ;  British  Minister  for  Foreign  Affairs  to  Ambassador  Page,  London, 
August  22,  1914,  ibid.,  p.  3;  Charge  Wilson  to  the  Secretary  of  State,  St.  Peters- 
burg, August  27,  1914,  ibid.,  p.  5;  Ambassador  Herrick  to  the  Secretary  of  State, 
Paris,  September  3,  1914,  ibid.,  p.  6;  Ambassador  Gerard  to  the  Secretary  of 
State,  Berlin,  August  22,  1914,  ibid.,  p.  2. 

'  Proposal  to  adopt  Declaration  of  London  withdrawn  by  the  United  States 
on  October  22,  1914,  ibid.,  p.  7. 


132        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

came  convinced  that  other  provisions  of  the  Declaration  were  un- 
acceptable as  opposed  to  its  interests,  and  from  time  to  time  excluded 
them,  explaining  that  it  did  not  issue  the  Declaration  of  London 
as  such,  but  as  a  statement  of  certain  principles  of  law  which  it 
was  prepared  to  accept.  It  would,  however,  have  been  better  if 
Great  Britain  had  rejected  the  Declaration  of  London  at  the  out- 
set, adopting  at  the  same  time  such  of  its  articles,  separate  and  dis- 
tinct from  the  Declaration,  as  it  intended  to  observe.  In  this  way 
the  Declaration  would  not  have  had  any  validity  as  such,  confusion 
would  have  been  avoided,  and  the  opportunity  would  have  been 
denied  to  Germany  of  charging  Great  Britain  with  the  violation  of 
the  Declaration,  which  it  had  a  right  to  repudiate,  and  of  taxing 
the  United  States  with  remissness  in  not  protesting  against  these 
violations. 

Secretary  Bryan  was  therefore  justified  in  saying  on  this  point: 

As  this  Government  is  not  now  interested  in  the  adoption  of 
the  Declaration  of  London  by  the  belligerents,  the  modifications 
by  the  belligerents  in  that  code  of  naval  warfare  are  of  no  con- 
cern to  it  except  as  they  adversely  affect  the  rights  of  the 
United  States  and  those  of  its  citizens  as  defined  by  inter- 
national law.' 

And  he  was  further  justified  by  the  diplomatic  correspondence  of 
the  United  States  during  the  period  of  its  neutrality  in  the  state- 
ment that  "In  so  far  as  those  rights  have  been  infringed,  the 
Department  has  made  every  effort  to  obtain  redress  for  the  losses 
sustained. ' ' ' 


Section   10.     General   Unfriendly   Attitude   of   United   States 
Toward  Germany  and  Austria 

It  is  impossible  to  read  the  correspondence  between  the  United 
States  and  Germany  without  being  impressed  by  its  uniformly  kind 
and  courteous  tone,  and  without  noting  the  stress  laid  upon  the  friend- 
ship to  which  appeal  is  constantly  made,  and  which  the  American 
Government  at  that  time  apparently  thought  existed  between  Prussian- 
ized Germany  and  the  United  States.  The  reader  experiences  a  shock, 
on  turning  from  the  German  to  the  British  correspondence,  to  note  the 

"  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.  266. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     133 

cold  and  unyielding  terms  in  which  American  rights  concerning  only 
property  were  insisted  upon.  It  would  seem  as  if  the  American 
Government  feared  a  rupture  with  the  Imperial  German  Govern- 
ment, that  it  examined  each  and  every  question  as  it  arose  from  the 
standpoint  of  its  possible  effects  upon  relations  with  Germany  and  its 
people,  and  that  the  President  and  his  advisers  had  determined  that 
no  act  on  the  part  of  the  United  States,  that  no  unguarded  word  or 
expression  in  correspondence  with  Germany,  should  give  the  Imperial 
Government  a  pretext,  much  less  a  cause,  to  turn  against  the 
United  States  if  it  should  seem  to  stand  in  the  way  of  the  realiza- 
tion of  the  purpose  upon  whose  realization  the  German  Government 
had  bent  its  energies  and  upon  which  the  German  people  had  set 
their  heart. 

It  is  difficult  to  know  just  how  to  handle  a  grievance  or  a  com- 
plaint of  this  kind,  and  it  is  difficult  to  see  how  a  charge  of  this 
nature  can  be  met  and  overcome  if  it  has  not  already  been  disposed  of. 
Friendship  is  at  best  a  relative  term,  and  the  United  States  was 
not  in  a  position  to  choose  its  attitude,  for  it  is  a  Government  of  laws. 
The  President  and  his  advisers  are  the  creatures  and  the  servants 
of  law,  and  more  especially  of  international  law,  which,  by  the  Con- 
stitution of  the  United  States  and  by  the  decisions  of  the  Supreme 
Court,  is  and  is  declared  to  be  a  part  of  the  law  of  the  United  States. 
The  President  and  his  advisers  were  bound  to  yield  implicit  obedi- 
ence to  international  law ;  international  law  prescribed  the  neutrality 
and  the  duties  laid  upon  neutrals;  and  international  law,  therefore, 
determined  the  conduct  of  the  President  and  his  advisers.  In  the 
conception  of  law  there  is  neither  friendship  nor  enmity,  and  the 
impartiality  which  any  belligerent  can  ask  is  only  the  impartiality 
which  flows  from  compliance  with  the  law.  The  President  and  his 
advisers  might  have  done  less,  they  could  not  have  done  more  to 
show  their  neutrality,  for  the  neutrality  which  the  President  im- 
pressed upon  his  fellow  countrymen  was  not  merely  the  neutrality 
of  the  Kriegsbrauch  im  Landkriege,  which  simply  requires  compliance 
with  international  courtesies;  it  was  not  merely  the  neutrality  of 
action,  it  was  the  neutrality  of  thought  and  of  expression.  Secretary 
Bryan  was  speaking  in  the  fullness  of  knowledge  when  he  regarded  the 
categorical  replies  to  the  specific  complaints  set  out  in  his  letter  as  a 
sufficient  answer  to  the  charge  of  unfriendliness  to  Germany  and 
Austria-Hungary;  and  in  the  last  paragraph  but  one  of  his  letter 
he  stated  the  cause  of  the  apparent  difference  in  the  treatment  of 
Germany  and  Great  Britain,  a  cause  which  was  not  of  his  making 


134        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

and  which  neither  the  President  nor  the  United  States  could  alter. 
Thus  he  said: 

If  any  American  citizens,  partisans  of  Germany  and  Austria- 
Hungary,  feel  that  this  administration  is  acting  in  a  way  injuri- 
ous to  the  cause  of  those  countries,  this  feeling  results  from 
the  fact  that  on  the  high  seas  the  German  and  Austro-Hungarian 
naval  power  is  thus  far  inferior  to  the  British.  It  is  the  busi- 
ness of  a  belligerent  operating  on  the  high  seas,  not  the  duty  of 
a  neutral,  to  prevent  contraband  from  reaching  an  enemy.  Those 
in  this  country  who  sympathize  with  Germany  and  Austria- 
Hungary  appear  to  assume  that  some  obligation  rests  upon  this 
Government  in  the  performance  of  its  neutral  duty  to  prevent 
all  trade  in  contraband,  and  thus  to  equalize  the  difference  due 
to  the  relative  naval  strength  of  the  belligerents.  No  such  obli- 
gation exists;  it  would  be  an  unneutral  act,  an  act  of  partiality 
on  the  part  of  this  Government  to  adopt  such  a  policy  if  the 
Executive  had  the  power  to  do  so.  If  Germany  and  Austria- 
Hungary  can  not  import  contraband  from  this  country,  it  is 
not,  because  of  that  fact,  the  duty  of  the  United  States  to  close 
its  markets  to  the  allies.  The  markets  of  this  country  are  open 
upon  equal  terms  to  all  the  world,  to  every  nation,  belligerent 
or  neutral.^ 


Section  11.   Summary 

The  charges  contained  in  Senator  Stone's  letter  of  January  8, 
1915,  and  specifically  answered  by  Secretary  Bryan  in  his  reply  of 
January  20th  to  Senator  Stone,  have  been  enumerated  and  discussed 
in  very  considerable  detail  because,  as  far  as  known.  Senator  Stone's 
letter  contained  all  the  grievances  both  of  the  Imperial  German  Gov- 
ernment and  its  sympathizers  in  the  United  States,  and  Secretary 
Bryan's  reply  justified  the  conduct  of  the  United  States  on  the 
eve  of  the  announcement  by  Germany  of  its  intention  to  use  the 
submarine  against  Great  Britain,  even  although  by  its  use  neutrals 
should  suffer  as  well  as  its  enemy.  -^Xhe  war  entered  upon  a  new 
phase,  and  it  is  because  of  the  injuries  to  American  life  and  prop- 
erty resulting  from  the  conduct,  or  rather  misconduct,  of  the  sub- 
marine which  brought  about  that  state  of  war  declared  by  the  Con- 
gress and  President  of  the  United  States  to  exist  on  the  6th  day 
of  April,  1917,  between  the  United  States  and  the  Imperial  German 
Government.   \  There   were,   indeed,   grave   assaults  upon  American 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  266-267. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      135 

sovereignty  within  the  United  States  and  attacks  upon  American 
rights  beyond  the  United  States  by  other  agencies  than  that  of  the 
submarine,  but  in  comparison  they  were  as  aggravations.  They  added, 
it  might  be  said,  insult  to  injury ;  they  were  not  of  themselves,  and 
they  would  not  have  been  of  themselves,  a  cause  of  war,  although, 
even  without  the  menace  of  the  submarine,  they  would  have  created 
resentment  and  embittered  the  relations  of  the  two  countries.  They 
will  only  be  referred  to  as  occasion  requires  and  mentioned  in  passing, 
for  the  direct  and  impelling  cause  of  the  war  arose  through  the  use 
of  the  submarine,  and  its  abuse. 


CHAPTER   IX 

SUBMARINE   WARFARE 

In  a  note  dated  February  6,  1915,  from  the  German  Ambassador 
to  the  Secretary  of  State  occurs  the  following  paragraph : 

It  is  known  to  the  Imperial  Government  that  Great  Britain 
is  on  the  point  of  shipping  to  France  large  forces  of  troops  and 
quantities  of  implements  of  war.  Germany  will  oppose  this  ship- 
ment with  every  war  means  at  its  command.' 

What  steps  the  Imperial  German  Government  meant  to  take  are 
stated  in  the  proclamation  of  the  4th  of  February,  1915,  in  which 
it  declared  the  waters  surrounding  Great  Britain  and  Ireland  to  be 
comprised  within  the  seat  of  war  and  that  neutral  vessels  entering 
such  waters  did  so  at  their  peril.  The  text  of  the  proclamation  as 
transmitted  by  the  American  Ambassador  is  thus  worded: 

1.  The  waters  surrounding  Great  Britain  and  Ireland  includ- 
ing the  whole  English  Channel  are  hereby  declared  to  be  war 
zone.  On  and  after  the  18th  of  February,  1915,  every  enemy 
merchant  ship  found  in  the  said  war  zone  will  be  destroyed 
without  its  being  always  possible  to  avert  the  dangers  threaten- 
ing the  crews  and  passengers  on  that  account. 

2.  Even  neutral  ships  are  exposed  to  danger  in  the  war  zone 
as  in  view  of  the  misuse  of  neutral  flags  ordered  on  January  31 
by  the  British  Government  and  of  the  accidents  of  naval  war, 
it  cannot  always  be  avoided  to  strike  even  neutral  ships  in 
attacks  that  are  directed  at  enemy  ships. 

3.  Northward  navigation  around  the  Shetland  Islands,  in 
the  eastern  waters  of  the  North  Sea  and  in  a  strip  of  not  less 
than  30  miles  width  along  the  Netherlands  coast,  is  in  no  danger.^ 

The  proclamation  was  accompanied  by  a  memorandum  setting  forth 
the  misconduct  of  Great  Britain  as  the  justification  for  the  declara- 
tion of  the  war  zone. 

Before  taking  up  the  provisions  of  the  memorandum — a  revela- 

'  Papers  Relating  to  Maritime  Danger  Zones,  p.   22. 

2  Official  text,  American  Journal  of  International  Laic,  Special  Supplement, 
July,   1915,  pp.   83-84. 

136 


A   SURVEY   OF   INTERNATIONAL   RELATIONS       137 

tion  of  national  psychology — it  is  to  be  observed  that,  according  to  the 
proclamation,  enemy  merchant  ships  are  to  be  destroyed  without  the 
necessity  of  saving  the  crew  and  passengers,  and  that  neutral  ships 
may  be  treated  as  enemy  ships  without  saving  the  crew  and  passen- 
gers, for  the  twofold  reason  that  British  vessels  had  been  ordered  to 
use  neutral  flags,  and  that  neutral  vessels  might  be  accidentally  sunk 
because  of  a  failure  to  visit  and  search  them.  In  the  memorandum 
accompanying  the  proclamation  the  illegal  acts  of  the  British  Gov- 
ernment are  set  forth  in  considerable  detail,  which  may  be  thus  sum- 
marized: That,  (1)  although  Great  Britain  had  ordered  its  naval 
forces  to  be  guided  by  the  Declaration  of  London,  nevertheless  the 
Declaration  has  been  repudiated  in  its  essential  points;  (2)  the 
British  Government  has  obliterated  the  distinction  between  absolute 
and  conditional  contraband  and  has  placed  upon  the  list  of  contra- 
band articles  which  are  not  such  under  the  Declaration  of  London 
or  under  the   generally  acknowledged   rules  of  international   law; 

(3)  the  British  Government  has  violated  the  provision  of  the  Dec- 
laration  of   Paris   that   the   neutral    flag   covers    enemy    property; 

(4)  the  British  Government  has  removed  German  subjects  from 
neutral  ships  and  made  them  prisoners  of  war  and  that  such 
action  was  not  justified  by  the  provisions  of  the  Declaration 
of  London  which  Great  Britain  had  acknowledged;  (5)  the  British 
Government  has  declared  the  North  Sea  in  its  whole  extent  to  be 
a  seat  of  war,  thus  establishing  a  blockade  of  neutral  coasts  and 
ports  contrary  to  the  elementary  principles  of  generally  accepted 
international  law.  The  memorandum  declares  that  the  purpose  of 
these  measures  is  to  reduce  Germany  to  famine  by  "intercepting 
legitimate  neutral  commerce  by  methods  contrary  to  international 
law."^ 

By  way  of  comment,  it  may  be  said  in  this  connection  that,  even 
supposing  every  British  measure  complained  of  to  be  illegal,  it 
appears  that  the  act  was  the  act  of  Great  Britain,  that  it  was  not 
the  act  of  the  neutral  Powers  and  that  they  were  in  no  way  respon- 
sible for  it.  The  necessity  of  charging  the  neutrals  as  participes 
criminis  evidently  appealed  to  the  Imperial  German  authorities,  for  in 
the  succeeding  paragraph  they  are  blamed  for  not  having  prevented 
Great  Britain  from  doing  what  Germany  itself  and  by  force  of  arms 
did  not  and  apparently  could  not  prevent  Great  Britain  from  doing. 
The  language  of  this  part  of  the  memorandum  should  be  quoted,  as  a 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  84-85. 


138        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

paraphrase  might  seem  to  be  unjust  to  Germany.    Thus,  the  memo- 
randum said: 


// 


The  neutral  powers  have  in  the  main  acquiesced  in  the  meas- 
ures of  the  British  Government;  in  particular  they  have  not 
been  successful  in  securing  the  release  by  the  British  Govern- 
ment of  the  German  subjects  and  German  merchandise  illegally 
taken  from  their  vessels.  To  a  certain  extent  they  have  even 
contributed  toward  the  execution  of  the  measures  adopted  by 
England  in  defiance  of  the  principle  of  the  freedom  of  the  seas 
by  prohibiting  the  export  and  transit  of  goods  destined  for 
peaceable  purposes  in  Germany,  thus  evidently  yielding  to  pres- 
sure by  England.  The  German  Government  have  in  vain  called 
the  attention  of  the  neutral  powers  to  the  fact  that  Germany 
must  seriously  question  whether  it  can  any  longer  adhere  to  the 
stipulations  of  the  Declaration  of  London,  hitherto  strictly 
observed  by  it,  in  case  England  continues  to  adhere  to  its  prac- 
tice, and  the  neutral  powers  persist  in  looking  with  indulgence 
upon  all  these  violations  of  neutrality  to  the  detriment  of  Ger- 
many. Great  Britain  invokes  the  vital  interests  of  the  British 
Empire  which  are  at  stake  in  justification  of  its  violations  of 
the  law  of  nations,  and  the  neutral  powers  appear  to  be  satis- 
fied with  theoretical  protests,  thus  actually  admitting  the  vital  ^s. 
interests  of  a  belligerent  as  a  sufficient  excuse  for  methods  of  y^ 
waging  war  of  whatever  description.^ 

It  is  not  necessary  to  indulge  in  comment  upon  these  statements. 
It  is  sufficient  to  say  that,  as  far  as  the  United  States  is  concerned, 
it  protested  and  has  continued  to  protest  against  every  action  of 
Great  Britain  which  it  considered  to  be  illegal,  and  that  it  was  for 
the  United  States,  not  for  Germany,  to  determine  whether  the  United 
States  should  go  to  war  if  its  peaceful  protests  were  unsuccessful. 
In  the  next  place,  it  is  for  the  neutral  Nation  possessing  sovereignty 
to  decide  for  itself  whether  it  would  or  would  not  export  goods  des- 
tined for  Germany  or  for  any  other  country,  and  that  it  was  obviously 
a  matter  of  indifference  to  neutrals  whether  Germany  adhered  to  the 
Declaration  of  London  or  repudiated  it,  as  long  as  Germany's  conduct 
was  in  accordance  with  the  principles  of  generally  accepted  inter- 
national law.  And  finally,  it  would  seem  that  if  the  invocation  of 
vital  interests  could  not  be  a  justification  of  British  actions  contrary 
to  the  elementary  principles  of  generally  accepted  international  law, 
of  which  Germany  complained,  the  invocation  of  vital  interests  on 
behalf  of  Germany  would  not  be  a  justification  of  the  violation  of 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.  85. 


BETWEEN  THE  UNITED  STATES  .AND  GERMANY     139 

the  principles  of  generally  accepted  international  law  by  which  the 
conduct  of  belligerents  was  to  be  tested.  Nevertheless,  Germany  pro- 
ceeded to  do  what  it  condemned  in  Great  Britain,  saying  in  the  open- 
ing lines  of  the  next  paragraph: 

The  time  has  come  for  Germany  also  to  invoke  such  vital 
interests.  It  therefore  finds  itself  under  the  necessity,  to  its 
regret,  of  taking  military  measures  against  England  in  retalia- 
tion of  the  practice  followed  by  England.  Just  as  England 
declared  the  whole  North  Sea  between  Scotland  and  Norway 
to  be  comprised  within  the  seat  of  war,  so  does  Germany  now 
declare  the  waters  surrounding  Great  Britain  and  Ireland,  in- 
cluding the  whole  English  Channel,  to  be  comprised  within  the 
seat  of  war,  and  will  prevent  by  all  the  military  means  at  its 
disposal  all  navigation  by  the  enemy  in  those  waters.^ 

For  the  reasons  stated,  neutrals  were  warned  not  to  place  their 
persons  or  property  upon  enemy  vessels  entering  the  proscribed  area, 
and  neutrals  were  furthermore  advised  to  recommend  their  vessels 
to  keep  away  from  such  area.    Thus: 

To  this  end  it  will  endeavor  to  destroy,  after  February  18 
next,  any  merchant  vessels  of  the  enemy  which  present  them- 
selves at  the  seat  of  war  above  indicated,  although  it  may  not 
always  be  possible  to  avert  the  dangers  which  may  menace  per- 
sons and  merchandise.  Neutral  powers  are  accordingly  fore- 
warned not  to  continue  to  entrust  their  crews,  passengers,  or 
merchandise  to  such  vessels.  Their  attention  is  furthermore 
called  to  the  fact  that  it  is  of  urgency  to  recommend  to  their 
own  vessels  to  steer  clear  of  these  waters.- 

This  was  rather  questionable  language  from  a  Power  confessedly 
acting  in  behalf  of  the  freedom  of  the  seas.  Accordingly,  it  was 
tempered  by  the  statement  that  German  naval  officers  would  refrain 
from  destroying  neutral  vessels  which  were  recognizable  as  such; 
but  the  fear  was  expressed  that  the  misuse  of  the  neutral  flag  ordered 
by  Great  Britain  would  endanger  neutral  vessels  within  the  area, 
although  it  is  difficult  to  see  how  this  would  be  liable  to  happen  if 
the  commander  of  the  submarine  exercised  the  right  of  visit  and 
search  which,  as  regards  a  neutral,  is  not  merely  a  right  but  a  duty. 
Thus  the  memorandum  continued: 

It  is  true  that  the  German  Navy  has  received  instructions  to 
abstain  from  all  violence  against  neutral  vessels  recognizable  as 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  85. 
2  Ibid. 


140        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

such;  but  in  view  of  the  hazards  of  war,  and  of  the  misuse  of 
the  neutral  flag  ordered  by  the  British  Government,  it  will  not 
always  be  possible  to  prevent  a  neutral  vessel  from  becoming 
the  victim  of  an  attack  intended  to  be  directed  against  a  vessel 
of  the  enemy.^ 

The  reference  to  the  misuse  of  the  neutral  flag  need  not  impress 
the  well-informed  reader,  because,  however  repulsive  the  use  may  be 
of  a  neutral  flag  by  a  belligerent,  the  law  of  Nations  permits  it. 
The  German  Prize  ordinance  of  August  3,  1914,  allows  its  men-of-war 
to  fly  the  neutral  flag,  and  the  United  States  when  at  war  has  like- 
wise done  so.  In  any  event,  the  United  States  did  not  authorize 
Great  Britain  to  use  the  American  flag  or  consent  to  such  use,  but 
protested  vigorously  against  it.  The  threat  against  neutrals  was, 
therefore,  as  far  as  the  United  States  was  concerned,  groundless 
and  was  in  effect  the  punishment  of  a  neutral  for  the  act  of  a 
belligerent  against  which  that  neutral  had  protested  but  which  it 
was  apparently  unwilling  to  go  to  war  in  order  to  prevent.  The 
German  act  was  admittedly  an  act  of  retaliation,  which  might  be 
justified  if  its  effects  were  confined  to  the  enemy  giving  cause  for  the 
retaliation,  but  which  was  certainly  not  permissible  against  neutrals 
and  will  not,  it  is  believed,  be  permissible  until  the  distinction  between 
guilt  and  innocence  is  destroyed. 

The  real  justification  for  Germany's  declaration  of  unrestricted 
submarine  warfare  was  that  it  was  necessary  to  its  vital  iriterests; 
but  as  the  Imperial  German  Government  had  objected  to  those  acts 

\         against  which  it  was  retaliating,  alleged  by  Great  Britain  to  be  neces-' 
sary  to  its  vital  interests,  the  German  action  was  without  justification, 

|^_    unless  two  wrongs  should  make  a  right. 

"^  The  proclamation  of  the  Imperial  Government  declaring  the 
waters  surrounding  Great  Britain  and  Ireland,  including  the  whole 
of  the  English  Channel,  as  comprising  the  seat  of  war,  did  not 
pass  unnoticed  by  the  United  States,  for  it  was  in  the  nature  of 
a  challenge  of  neutral  rights.  Therefore  in  an  instruction  of  Sec- 
retary Bryan  dated  February  10,  1915,  to  the  American  Ambassador 
to   Berlin,    the   United   States   requested   the    German    Government 

^^^  "to  consider  before  action  is  taken  the  critical  situation  in  respect 
of  the  relations  between  this  country  and  Germany  which  might 
arise  were  the  German  naval  forces,  in  carrying  out  the  policy 
foreshadowed  in  the  Admiralty's  proclamation,  to  destroy  any  mer- 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.  85. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      141 

chant  vessel  of  the  United  States  or  cause  the  death  of  American 
citizens. "  \\  As  was  natural  and  to  be  expected,  the  note  dealt  with 
■fKe  rights  or  neutrals  upon  the  high  seas  and  the  treatment  which 
they  should  receive  at  the  hands  of  belligerents,  laying  down  broadly 
and  correctly  the  principle  that  the  right  of  a  belligerent  in  the 
absence  of  blockade  is  limited  to  visit  and  search,  and  that  by  visit 
and  search,  not  by  the  display  of  a  flag,  the  neutral  character  of  the 
vessel  is  to  be  determined  as  well  as  the  quantity  and  quality  of_its^ 
cargo.    Thus : 

It  is  of  course  not  necessary  to  remind  the  German  Govern- 
ment that  the  sole  right  of  a  belligerent  in  dealing  with  neutral 
vessels  on  the  high  seas  is  limited  to  visit  and  search,  unless  a 
blockade  is  proclaimed  and  effectively  maintained,  which  this 
Government  does  not  understand  to  be  proposed  in  this  case. 
To  declare  or  exercise  a  right  to  attack  and  destroy  any  vessel 
entering  a  prescribed  area  of  the  high  seas  without  first  cer- 
tainly determining  its  belligerent  nationality  and  the  contra- 
band character  of  its  cargo  would  be  an  act  so  unprecedented 
in  naval  warfare  that  this  Government  is  reluctant  to  believe  that 
the  Imperial  Government  of  Germany  in  this  ease  contemplates 
it  as  possible.  The  suspicion  that  enemy  ships  are  using  neutral 
flags  improperly  can  create  no  just  presumption  that  all  ships 
traversing  a  prescribed  area  are  subject  to  the  same  suspicion. 
It  is  to  determine  exactly  such  questions  that  this  Government 
understands  the  right  of  visit  and  search  to  have  been  recog- 
nized.^ 

After  stating  that  ''the  Government  of  the  United  States  is  open 
to  none  of  the  criticisms  for  unneutral  action  to  which  the  German 
Government  believe  the  Governments  of  certain  of  other  neutral 
Nations  have  laid  themselves  open,"  that  the  "Government  of  the 
United  States  has  not  consented  to  or  acquiesced  in  any  measures 
which  may  have  been  taken  by  the  other  belligerent  nations  in  the 
present  war  which  operate  to  restrain  neutral  trade,"  and  that  this 
Government  had  "on  the  contrary,  taken  in  all  such  matters  a  posi- 
tion which  warrants  it  in  holding  those  governments  responsible  in 
the  proper  way  for  any  untoward  effects  upon  American  shipping 
which  the  accepted  principles  of  international  law  do  not  justify," 
the  Secretary  of  State  firmly  stated  that  the  destruction  of  American 
life  or  property  upon  the  high  seas  within  the  proscribed  area  and 
under  the  circumstances  and  conditions  set  forth  in  the  German 

'  Official  text,  American  Journal  of  International  Laic,  Special  Supplement, 
July,  1915,  p.  86. 
2  Ibid.,  pp.  86-87. 


142        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

proclamation  would  be  regarded  as  an  unfriendly  act,  and  that  the 
United  States  would  be  constrained  to  hold  the  Imperial  German 
Government  to  a  "strict  accountability"  for  any  act  committed  by 
it  not  in  accord  with  the  generally  accepted  principles  of  inter- 
national law.    Thus: 

If  the  commanders  of  German  vessels  of  war  should  act  upon 
the  presumption  that  the  flag  of  the  United  States  was  not  being 
used  in  good  faith  and  should  destroy  on  the  high  seas  an  Ameri- 
can vessel  or  the  lives  of  American  citizens,  it  would  be  difficult 
for  the  Government  of  the  United  States  to  view  the  act  in  any 
other  light  than  as  an  indefensible  violation  of  neutral  rights 
which  it  would  be  very  hard  indeed  to  reconcile  with  the  friendly 
relations  now  so  happily  subsisting  between  the  two  Governments. 

If  such  a  deplorable  situation  should  arise,  the  Imperial  Ger- 
man Government  can  readily  appreciate  that  the  Government  of 
the  United  States  would  be  constrained  to  hold  the  Imperial 
German  Government  to  a  strict  accountability  for  such  acts  of 
their  naval  authorities  and  to  take  any  steps  it  might  be  neces- 
sary to  take  to  safeguard  American  lives  and  property  and  to 
secure  to  American  citizens  the  full  enjoyment  of  their  acknowl- 
edged rights  on  the  high  seas.^ 

In  conclusion  the  Government  of  the  United  States  requested  an 
assurance  of  the  Imperial  German  Government  that  American  citi- 
zens and  their  vessels  would  not  be  molested  by  the  naval  forces  of 
Germany  ''otherwise  than  by  visit  and  search,  though  their  vessels 
may  be  traversing  the  sea  area  delimited  in  the  proclamation  of  the 
German  Admiralty."^  And  in  order  that  the  good  faith  of  the 
United  States  might  be  beyond  question,  and  that  the  plea  of  the 
misuse  of  the  neutral  flag  should  be  withdrawn,  the  note  terminated 
with  the  statement  that  representations  had  been  made  to  Great 
Britain  "in  respect  to  the  unwarranted  use  of  the  American  flag  for 
the  protection  of  British  ships.  "- 

The  Imperial  German  Government  was  equally  prompt  in  its 
reply  to  Secretary  Bryan's  instruction  of  February  10th,  which 
appears  to  have  been  delivered  to  the  German  Foreign  Office  on  the 
12th  of  the  month,  and  on  the  16th  the  Imperial  Secretary  for  Foreign 
Affairs  replied  at  length  and  in  detail  to  the  contentions  of  the 
American  Government,  showing  by  the  promptness  and  fullness  of 
discussion  that  the  use  of  the  submarine  was  not  what  might  be 
called  the  result  of  a  sudden  inspiration,  but  rather  of  measured,  cold 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  87. 
2  Ibid.,  p.  88. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      143 

and  determined  calculation,  weighing  in  advance  as  in  a  balance  the 
advantages  which  would  accrue  from  this  method  of  warfare  and 
the  disadvantages  which  the  Imperial  Government  evidently  believed 
would  be  limited  to  diplomatic  protests. 

Omitting  the  introductory  portion  of  the  note  which  aptly  referred 
to  the  good  will  and  friendship  which  prompted  the  American  com- 
munication, Secretary  von  Jagow  hastened  to  assure  the  United  States 
that  the  action  of  his  Government  was  "in  no  wise  directed  against 
the  legitimate  trade  and  navigation  of  neutral  states"  and  that  it 
merely  represented  "an  act  of  self-defense  which  Germany's  vital 
interests  force  her  to  take  against  England's  methods  of  conducting 
maritime  war  in  defiance  of  international  law,  which  no  protest  on 
the  part  of  neutrals  has  availed  to  bring  into  accordance  with  the 
legal  status  generally  recognized  before  the  outbreak  of  hostilities."^ 
"We  here  have  as  reasons  advanced:  the  vital  interests  of  Germany, 
as  decided  by  Germany,  forced  Germany  to  commit  an  act  of  self- 
defense,  likewise  determined  by  Germany,  to  put  a  stop  to  the  unlaw- 
ful actions  of  Great  Britain  which  it  was  the  duty  of  the  neutrals 
to  prevent,  and  as  these  neutrals  had  not  complied  with  their  duty 
Germany  was  free  to  take  any  course  of  action  calculated  in  its 
opinion  to  keep  British  action  within  the  bounds  of  law. 

The  Imperial  Secretary  of  State  then  proceeds  to  state  anew  his 
country's  cause;  and  in  his  very  first  sentence  he  makes  an  admis- 
sion, the  nature  and  importance  of  which  he  did  not  apparently 
recognize,  because,  armed  with  this  statement,  the  neutral  does  not 
need  to  argue  the  question  of  illegality,  saying  that  "Up  to  now  Ger- 
many has  scrupulously  observed  the  existing  provisions  of  inter- 
national law  relative  to  maritime  war," — ^leaving  it  to  be  understood 
that  henceforth  the  Imperial  German  Government  forsakes  the  beaten 
track  of  precedent  to  embark  on  unknown  and  troubled  seas.  The 
Imperial  Secretary  next  denounces  Great  Britain's  unlawful  inter- 
ference with  Germany's  peaceable  trade  with  neutral  countries,  and 
in  so  doing  makes  a  second  admission  that  the  United  States  in  its 
note  dated  December  28,  1914,  "has  dealt  with  this  point  very  aptly 
ii  not  very  exhaustively  on  the  ground  of  the  experiences  of  months," 
thus  freeing  the  United  States  from  the  imputation  of  condoning 
British  conduct,  considered  by  both  countries  as  unwarranted  by  the 
generally  accepted  principles  of  international  law. 

In  the  next  paragraph  the  Imperial  Secretary  summarizes  the 

•  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  90. 


144        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

British  acts  as  intended  ''to  deliver  up  to  death  by  famine  a  peaceful 
civilian  population,  a  procedure  contrary  to  the  law  of  war  and  every 
dictate  of  humanity."  In  view  of  the  fact  that  the  law  of  Nations 
which  was  universally  recognized  before  the  outbreak  of  the  war  in 
1914,  permitted  a  belligerent  to  blockade  the  ports  of  its  enemy  and 
•^,     to  starve  its  enemy  into  submission  if  possible,  and  in  view  also  of  the 

I     fact  that  the  policy  of  Germany  was  intended  to  starve  out  the  island 

j      kingdom  of  Great  Britain  by  sinking  on  sight  enemy  or  neutral  ves- 
sels found  traversing  those  waters,  it  would  seem  that  the  statement 

1      of  the  German  Secretary  in  this  matter  is  neither  convincing  nor 

\     felicitous. 

After  a  further  reference  to  the  lack  of  success  which  had  crowned 
the  efforts  of  the  United  States  in  its  protests,  the  German  Govern- 
ment considered  itself  obliged  "to  point  out  very  particularly  and 
with  the  greatest  emphasis,  that  a  trade  in  arms  exists  between  Ameri- 
can manufacturers  and  Germany's  enemies  which  is  estimated  at 
many  hundred  million  marks."  The  Imperial  Secretary  admitted 
that  it  was  the  right  of  the  citizens  or  subjects  of  a  neutral 
Nation  to  indulge  in  this  trade,  but  added  that  it  had  the  right, 
"although  unfortunately  not  exercised,  to  stop  trade  in  contraband, 
especially  the  trade  in  arms,  with  Germany 's  enemies. ' '  ^  But  if  the 
citizens  of  a  neutral  country  had  the  right  to  trade  with  one  belliger- 
ent, they  also  had  the  right  to  do  so  with  another  belligerent,  and  the 
request  to  place  an  embargo  upon  the  commerce  of  American  citizens 
with  England  was  in  effect  a  justification  of  a  refusal  of  neutral 
Powers  to  trade  with  Germany  should  they  so  decide. 

These  various  statements  of  the  note  have  been  analyzed  by  way 
of  introduction  to  the  policy  which  Germany  had  determined  upon 
and  which  it  stated  and  attempted  to  justify  in  the  following  brief 
but  weighty  paragraphs : 

In  view  of  this  situation  the  German  Government  see  them- 
selves compelled,  after  six  months  of  patience  and  watchful 
waiting,  to  meet  England's  murderous  method  of  conducting 
maritime  war  with  drastic  counter  measures.  If  England  in- 
vokes the  powers  of  famine  as  an  ally  in  its  struggles  against 
Germany  with  the  intention  of  leaving  a  civilized  people  the 
alternative  of  perishing  in  misery  or  submitting  to  the  yoke  of 
England's  political  and  commercial  will,  the  German  Govern- 
ment are  today  determined  to  take  up  the  gauntlet  and  to  appeal 
to  the  same  grim  ally.     They  rely  on  the  neutrals  who  have 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  92. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      145 

hitherto  tacitly  or  under  protest  submitted  to  the  consequences, 
detrimental  to  themselves,  of  England's  war  of  famine  to  dis- 
play not  less  tolerance  toward  Germany,  even  if  the  German 
measures  constitute  new  forms  of  maritime  war,  as  has  hitherto 
been  the  case  with  the  English  measures. 

In  addition  to  this,  the  German  Government  are  determined 
to  suppress  with  all  the  means  at  their  disposal  the  supply  of 
war  material  to  England  and  her  allies  and  assume  at  the  same 
time  that  it  is  a  matter  of  course  that  the  neutral  Governments 
which  have  hitherto  undertaken  no  action  against  the  trade  in 
arms  with  Germany's  enemies  do  not  intend  to  oppose  the 
forcible  suppression  of  this  trade  by  Germany.^ 

As  a  means  to  accomplish  this  end,  clearly  and  unmistakably  ex- 
pressed, at  the  expense  of  neutrals  if  success  should  require  it,  the 
Imperial  German  Government  thus,  within  a  single  sentence  and 
without  circumlocution,  sealed  up,  as  far  as  was  within  its  power, 
every  avenue  of  approach  to  and  from  Great  Britain:  "Proceeding 
from  these  points  of  view  the  German  Admiralty  has  declared  the 
zone  prescribed  by  it  the  seat  of  war;  it  will  obstruct  this  area  of 
maritime  war  by  mines  wherever  possible  and  also  endeavor  to  destroy 
the  merchant  vessels  of  the  enemy  in  any  other  way. ' '  ^ 

It  is  true  that,  in  the  above  announcement,  enemy  ships  alone  are 
mentioned,  but  it  is  well  known  that  mines  are  no  respecters  of  per- 
sons or  of  property,  and  immediately  thereafter  the  Imperial  Sec- 
retary stated  that,  if  it  were  necessary  to  destroy  neutral  shipping 
in  order  to  ejffeet  Germany's  purpose,  neutral  shipping  would  be 
destroyed.  Thus,  after  disclaiming  the  intention  to  destroy  "neutral 
lives  and  neutral  property,"  he  states  that  his  Government  "cannot 
be  blind  to  the  fact  that  dangers  arise  through  the  action  to  be  car- 
ried out  against  England  which  menace  without  discrimination 
all  trade  within  the  area  of  maritime  war."  And  the  Imperial 
German  Secretary  plainly,  curtly,  indeed  bluntly,  informs  neutrals 
that  "the  safest  way  of  doing  this  is  to  stay  away  from  the  area  of 
maritime  war." 

Lest,  however,  the  full  meaning  and  import  of  this  statement 
might  pass  unnoticed,  Herr  von  Jagow  makes  the  meaning  of  his 
Government  clear  even  to  the  uninitiated  in  such  matters,  saying: 

Neutral  ships  entering  the  closed  waters  in  spite  of  this 
announcement,  given  so  far  in  advance,  and  which  seriously 
impairs   the   accomplishment   of  the   military   purpose   against 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  92. 
2  Ibid.,  pp.  92-93. 


146        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

England,  bear  their  own  responsibility  for  any  unfortunate  acci- 
dents. The  German  Government  on  their  side  expressly  decline 
all  responsibility  for  such  accidents  and  their  consequences/ 

The  great  Mirabeau  is  reported  to  have  said  that  war  was  Prussia's 
favorite  industry.^  It  has  been  so  often  said,  that  no  authority  is 
needed  for  it,  that  Prussia  has  made  its  enemies  pay  for  its  wars. 
The  Imperial  German  Secretary  announced  the  further  development 
in  this  form  of  industry  by  shifting  the  burden  of  the  industry  upon 
neutrals  and  carrying  it  on  at  their  expense. 

The  Imperial  Secretary,  after  this  frank  statement  of  the  inten- 
tions of  his  Government,  discusses  the  measures  which  could  be  taken 
in  order  either  to  cause  neutral  merchantmen  to  be  recognized  as  such 
or  to  restrict  the  cargoes  they  should  carry  in  order  to  render  their 
voyages  to  and  from  Great  Britain  through  the  forbidden  area  harm- 
less as  far  as  Germany's  interests  are  concerned,  and  the  Secretary 
expressed  a  willingness  to  give  "the  most  earnest  consideration  to 
any  measure  that  might  be  calculated  to  assure  the  safety  of  legiti- 
mate shipping  of  neutrals  within  the  seat  of  war. ' '  *  He  admitted, 
however,  that  two  circumstances  militated  against  an  agreement: 
first,  the  misuse  of  the  neutral  flag  by  English  merchant  vessels; 
second,  the  trade  in  contraband,  especially  war  materials,  by  neutral 
vessels.  After  discussing  the  misuse  of  the  neutral  flag  by  British 
merchantmen  and  stating  that  the  British  Government  had  recom- 
mended the  use  of  such  flags,  the  Secretary  added  that  any  agree- 
ment which  might  be  reached  would  be  defeated  if  British  merchant 
vessels  were  permitted  to  use  neutral  flags  and  thus  escape  detection. 
The  Secretary  welcomed  the  fact  that  the  American  Government  had 
made  representations  to  Great  Britain  concerning  the  use  of  the 
American  flag  and  he  gave  expression  to  the  expectation  ''that  this 
action  would  cause  England  to  respect  the  American  flag  in  future," 
and,  to  quote  his  exact  language, ' '  in  this  expectation  the  commanders 
of  the  German  submarines  have  been  instructed,  as  was  already  stated 
in  the  note  of  the  fourth  instant,  to  abstain  from  violence  to  Ameri- 
can merchant  vessels  when  they  are  recognizable  as  such. ' '  * 

^  OflScial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  93. 

2  Mirabeau's  expression  is  usually  paraphrased  in  the  form  reproduced  in  the 
text.  He  actually  said :  "  I  shall  consider  finally  the  military  system  of  this 
country  given  over  wholly  to  war,  a  kind  of  industry  truly  Prussian  and  hitherto 
one  of  the  most  solid  bases  of  the  power  to  which  the  House  of  Brandenburg  has 
raised  itself."  (Mirabeau,  De  la  MonarcMe  Prussienne,  sous  Frederic  le  Grand, 
1788,  tome  I,  Introduction,  unpaged.) 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.   94. 

*  Ibid. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      147 

The  meaning  of  this  is  tolerably  clear.  American  vessels,  clearly 
recognized  as  such  without  the  formalities  of  visit  and  search,  were 
not  to  be  destroyed,  but  this  concession  was  based  upon  the  expec- 
tation that  the  American  protest  to  Great  Britain  against  the  use 
of  the  American  flag  by  British  merchantmen  would  be  successful. 
Otherwise,  this  concession  was  likely  to  be  withdrawn.  It  might 
happen,  however,  that  an  American  vessel  would  be  mistaken  for  a 
British  merchantman,  even  although  Great  Britain  had  renounced 
the  use  of  the  American  flag,  and,  recognizing  the  possibility  of  this, 
the  Imperial  Secretary  proceeded  to  point  out  *'the  safest  manner" 
to  avoid  the  mistake  of  an  American  for  a  hostile  vessel.  This  ' '  safest 
manner"  was  for  the  United  States  to  convoy  its  ships  carrying 
peaceable  cargoes  navigating  the  seas  surrounding  Great  Britain. 
This  would  obviate  the  necessity  of  visiting  and  searching  the  mer- 
chant vessel,  as  the  word  of  the  commander  of  the  convoy  would  be 
taken  as  to  the  nationality  of  the  vessel;  but  the  German  Govern- 
ment meant  something  more  than  establishing  the  nationality.  The 
ships  convoyed  were  to  be  those  carrying  peaceable  cargoes,  and,  if 
only  those  ships  were  to  be  spared,  Germany  must  naturally  decide 
for  itself  the  question  of  the  peaceable  cargo.  In  order  that  there 
might  be  no  misunderstanding  on  this  point,  Germany  stated  it  as 
a  condition  "that  only  such  ships  should  be  convoyed  as  carry  no 
merchandise  which  would  have  to  be  considered  as  contraband  accord- 
ing to  the  interpretation  applied  by  England  against  Germany,"  that 
is  to  say,  no  vessel  carrying  any  article  declared  by  Great  Britain  to 
be  contraband  would  be  entitled  to  safety.  The  Secretary  stated  the 
willingness  of  his  Government  to  enter  into  negotiations  concerning 
the  matter  of  convoy;  but,  in  the  meantime,  the  American  Govern- 
ment was  recommended  to  warn  its  ships  to  abstain  from  British 
waters,  at  any  rate  until  the  flag  question  was  settled. 

The  ''safest  manner"  to  avoid  sinking  neutral  merchantmen  was 
to  follow  the  law  of  Nations,  which,  in  this  matter,  requires  belliger- 
ent war  vessels  to  visit  and  to  search  the  merchantman  in  order  to 
ascertain  its  nationality  and  the  nature  and  extent  of  its  cargo. 
As  the  use  of  neutral  flags  is  permitted,  the  flag  is  not  a  safe  guide 
as  to  nationality,  a  fact  pointed  out  many  years  ago  by  Secretary  of 
State  Cass  in  1860  before  the  outbreak  of  the  Civil  War.  The  prize 
ordinance  issued  by  Germany  on  the  3d  of  August,  1914,  permits 
its  vessels  of  war  to  use  neutral  flags,  and,  so  far  as  known,  no  nation 
prevents  its  merchantmen  from  saving  themselves  at  the  expense  of 
a  bit  of  bunting. 


148        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Without  stopping  to  argue  the  question,  which  will  be  considered 
later,  it  should  be  stated  that  the  German  note  points  out  the  reason 
why  visit  and  search  would  not  be  the  "safest  manner"  to  the  German 
submarine,  although  it  is  recognized  by  international  law  to  be  the 
"safest  manner"  to  the  merchantman.  Thus,  the  Imperial  German 
Secretary  says:  "Moreover,  the  British  Government  have  armed 
English  merchant  vessels  and  instructed  them  to  resist  by  force  the 
German  submarines.  In  these  circumstances  it  is  very  difficult  for 
the  German  submarines  to  recognize  neutral  merchant  vessels  as  such, 
for  even  a  search  will  not  be  possible  in  the  majority  of  cases,  since 
the  attacks  to  be  anticipated  in  the  case  of  a  disguised  English  ship 
would  expose  the  commanders  conducting  the  search  and  the  boat 
itself  to  the  danger  of  destruction."^  It  is  to  be  observed  that  in 
this  note  the  Imperial  Secretary  refers  to  the  fact  that  The  Lusitania 
had  recently  raised  the  American  flag  in  order  to  escape  its 
enemy  and,  as  coming  events  are  said  to  cast  their  shadow  before. 
The  Lusitania  was  soon  to  suffer  at  the  hands  of  the  submarine  for 
the  misuse  of  the  American  flag,  by  virtue  of  which  it  either  did  or 
tried  to  escape  destruction. 

Four  days  later,  that  is  to  say,  on  the  20th  of  February,  1915, 
the  Government  of  the  United  States  earnestly  besought  both  Great 
Britain  and  Germany  to  come  to  an  agreement  upon  the  conduct  of 
maritime  warfare,  and  an  identic  note  concerning  this  matter  was 
sent  to  the  two  Governments.  In  doing  so.  Secretary  Bryan  was 
careful  to  point  out  that  the  United  States,  in  addressing  the  belliger- 
ents, did  not  assume  the  right  to  dictate,  but  that,  as  a  friend  of  each 
and  in  the  common  interests  of  humanity,  it  ventured  to  suggest  a 
basis  of  agreement  which,  if  accepted,  would  be  a  blessing  to  the 
world.  The  suggestions  were  of  three  kinds.  The  first  related  to  an 
agreement  of  Germany  and  Great  Britain,  the  second  to  an  agree- 
ment of  Germany,  the  third  to  an  agreement  of  Great  Britain.  This 
part  of  the  note  is  as  follows : 

Germany  and  Great  Britain  to  agree: 

1.  That  neither  will  sow  any  floating  mines,  whether  upon 
the  high  seas  or  in  territorial  waters ;  that  neither  will  plant  on 
the  high  seas  anchored  mines  except  within  cannon  range  of 
harbors  for  defensive  purposes  only;  and  that  all  mines  shall 
bear  the  stamp  of  the  Government  planting  them  and  be  so  con- 
structed as  to  become  harmless  if  separated  from  their  moorings. 

2.  That  neither  will  use  submarines  to  attack  merchant  ves- 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  94. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      149 

sels  of  any  nationality  except  to  enforce  the  right  of  visit  and 
search. 

3.  That  each  will  require  their  respective  merchant  vessels 
not  to  use  neutral  flags  for  the  purpose  of  disguise  or  ruse  de 
guerre. 

Germany  to  agree : 

That  all  importations  of  food  or  foodstuffs  from  the  United 
States  and  (from  such  other  neutral  countries  as  may  ask  it) 
into  Germany  shall  be  consigned  to  agencies  to  be  designated  by 
the  United  States  Government;  that  these  American  agencies 
shall  have  entire  charge  and  control  without  interference  on  the 
part  of  the  German  Government,  of  the  receipt  and  distribution 
of  such  importations,  and  shall  distribute  them  solely  to  retail 
dealers  bearing  licenses  from  the  German  Government  entitling 
them  to  receive  and  furnish  such  food  and  foodstuffs  to  non- 
combatants  only;  that  any  violation  of  the  terms  of  the  retailers' 
licenses  shall  work  a  forfeiture  of  their  rights  to  receive  such 
food  and  foodstuffs  for  this  purpose;  and  that  such  food  and 
foodstuffs  will  not  be  requisitioned  by  the  German  Government 
for  any  purpose  whatsoever  or  be  diverted  to  the  use  of  the 
armed  forces  of  Germany. 

Great  Britain  to  agree: 

That  food  and  foodstuffs  will  not  be  placed  upon  the  abso- 
lute contraband  list  and  that  shipments  of  such  commodities 
will  not  be  interfered  with  or  detained  by  British  authorities  if 
consigned  to  agencies  designated  by  the  United  States  Govern- 
ment in  Germany  for  the  receipt  and  distribution  of  such  car- 
goes to  licensed  German  retailers  for  distribution  solely  to  the 
noncombatant  population.^ 

It  is  sufficient  for  present  purposes  to  say  that  the  attempt  of 
the  United  States  to  bring  about  an  agreement  by  a  modus  vivendi 
between  Germany  and  Great  Britain  was  unsuccessful.^ 

Section  1.   The  "Lusitania" 

On  the  7th  of  May,  1915,  Tlie  Lusitania  was  sunk  by  a  German 
submarine  off  the  coast  of  Ireland.  The  vessel  was  on  its  voyage 
from  New  York  and,  in  addition  to  cargo,  it  carried  1,153  passengers. 
Of  this  number  783  lost  their  lives,  and  among  these  were  over  a 
hundred  American  citizens,  men,  women,  and  children.  The  Lusitania 
was  torpedoed  without  warning  at  2:30   o'clock  in  the  afternoon 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.   98-99. 

2  Ambassador  Gerard  to  the  Secretary  of  State,  Berlin,  March  1,  1915,  ibid., 
p.  99;  Ambassador  W.  H.  Page  to  the  Secretary  of  State,  London,  March  15, 
1915,  ihid.,  p.  106. 


150        A  SURVEY  OP  INTERNATIONAL  RELATIONS 

and  no  attempt  was  made  by  the  submarine  to  remove  the  passengers 
from  the  torpedoed  vessel  or  to  rescue  them  from  the  water  after  the 
liner  had  sunk.  This  was  not  the  first  passenger  steamer  which  had 
been  sunk  by  the  Germans  since  the  submarine  campaign  was 
announced  in  February  and  relentlessly  and  indiscriminately  prose- 
cuted. In  a  note  of  Secretary  Bryan  to  the  American  Ambassador 
at  Berlin  dated  May  13,  1915,  he  stated: 

The  sinking  of  the  British  passenger  steamer  Falaha  by  a 
German  submarine  on  March  28,  through  which  Leon  C.  Thrasher, 
an  American  citizen,  was  drowned ;  the  attack  on  April  28  on  the 
American  vessel  Gushing  by  a  German  aeroplane ;  the  torpedoing 
on  May  1  of  the  American  vessel  Gulfliglit  by  a  German  sub- 
marine, as  a  result  of  which  two  or  more  American  citizens  met 
their  death;  and,  finally,  the  torpedoing  and  sinking  of  the 
steamship  Lusiiania,  constitute  a  series  of  events  which  the 
Government  of  the  United  States  has  observed  with  growing 
concern,  distress,  and  amazement.^ 

The  sinking  of  The  Lusitania  was  therefore  not  an  isolated  act, 
but  it  was  one  of  a  series,  and,  unfortunately,  as  events  proved,  it 
was  but  one  of  a  continuing  series.  It  stood  out,  however,  and  it 
still  stands  out  as  the  chief  among  the  many  victims  of  the  sub- 
marine, just  as  in  a  later  period  the  torpedoing  of  The  Sussex 
stands  out  among  the  many  victims  of  the  submarine.  The  sinking  of 
The  Lusitania  amazed  and  dazed  the  American  people.  The  sinking 
of  The  Sussex  convinced  them  that  there  would  be  a  break  between 
the  two  countries  unless  there  were  a  radical  change  in  submarine 
warfare.  Each  incident  was  the  occasion  for  an  elaborate  and  a  frank 
interchange  of  views,  resulting  in  a  statement  and  a  promise,  which 
would  have  maintained  peace  between  the  two  countries  had  the 
promises  not  been  broken.  Each  of  these  two  instances  will  be  con- 
sidered in  detail.    First,  as  to  The  Lusitania. 

The  Imperial  German  Government  evidently  meant  The  Lusitania 
to  be  a  test  case.  It  had  apparently  formed  an  intention  in  advance 
to  destroy  this  vessel,  either  because  of  its  use  of  a  neutral  flag  on 
two  occasions  in  order  to  elude  the  submarine  or  because  the  destruc- 
tion of  a  huge  liner  plying  between  New  York  and  Liverpool  would 
call  the  attention  of  the  United  States  to  the  gravity  of  the  situation 
and  force  the  issue.  It  is  common  knowledge  that  persons  intending 
to  travel  on  The  Lusitania  were  in  some  cases  warned  by  anonymous 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  130. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      151 

telegrams  not  to  take  passage  upon  the  ship,  and  the  following 
notice  appeared  in  the  American  press  shortly  before  the  sailing 
of  The  Lusitania  purporting  to  come  from  the  Imperial  German 
Embassy,  warning  American  citizens  not  to  take  passage  on  the  liner. 

NOTICE ! 

TRAVELERS  intending  to  embark  on  the  Atlantic  voyage  are 
reminded  that  a  state  of  war  exists  between  Germany  and  her  allies 
and  Great  Britain  and  her  allies ;  that  the  zone  of  war  includes  the 
waters  adjacent  to  the  British  Isles ;  that,  in  accordance  with  formal 
notice  given  by  the  Imperial  German  Government,  vessels  flying  the 
flag  of  Great  Britain,  or  of  any  of  her  allies,  are  liable  to  destruc- 
tion in  those  waters  and  that  travelers  sailing  in  the  war  zone  on 
ships  of  Great  Britain  or  her  allies  do  so  at  their  own  risk. 

IMPERIAL   GERMAN   EMBASSY 

Washington,  D.  C.,  April  22,  1915.^ 

This  is  an  astounding  document  to  issue  from  an  Embassy,  and 
its  issuance  has  never  been  denied  or  repudiated.  It  can  only  be 
paralleled  by  Citizen  Genet's  appeal  from  the  President  of  the  United 
States  to  the  American  people  in  behalf  of  what  he  was  pleased  to 
call,  during  the  early  days  of  the  French  Revolution,  the  rights  of 
his  countrymen  against  Presidential  usurpation.  It  would  have  been 
proper  to  ask  the  Imperial  German  Ambassador  to  deny  its  authen- 
ticity or  the  Imperial  German  Government  to  disavow  the  act,  and 
in  case  of  a  refusal  to  do  one  or  the  other,  to  hand  the  Ambassador 
his  passports.  Instead  of  that.  Secretary  Bryan  thus  referred  to  this 
phase  of  the  incident : 

There  was  recently  published  in  the  newspapers  of  the  United 
States,  I  regret  to  inform  the  Imperial  German  Government,  a 
formal  warning  purporting  to  come  from  the  Imperial  German 
Embassy  at  Washington,  addressed  to  the  people  of  the  United 
States,  and  stating,  in  effect,  that  any  citizen  of  the  United  States 
who  exercised  his  right  of  free  travel  upon  the  seas  would  do  so 
at  his  peril  if  his  journey  should  take  him  within  the  zone  of 
waters  within  which  the  Imperial  German  Navy  was  using  sub- 
marines against  the  commerce  of  Great  Britain  and  France,  not- 
withstanding the  respectful  but  very  earnest  protest  of  his  Gov- 
ernment, the  Government  of  the  United  States.  I  do  not  refer 
to  this  for  the  purpose  of  calling  the  attention  of  the  Imperial 
German  Government  at  this  time  to  the  surprising  irregularity 
of  a  communication  from  the  Imperial  German  Embassy  at  Wash- 
ington addressed  to  the  people  of  the  United  States  through  the 
1  The  New  York  Times,  May  1,  1915,  adv.,  p.  19. 


152        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

newspapers,  but  only  for  the  purpose  of  pointing  out  that  no 
warning  that  an  unlawful  and  inhumane  act  will  be  committed 
can  possibly  be  accepted  as  an  excuse  or  palliation  for  that  act 
or  as  an  abatement  of  the  responsibility  for  its  commission.' 

Secretary  Bryan  in  The  Liisitania  note  recalled  to  the  attention 
of  the  Imperial  German  Government  the  statements  he  had  previ- 
ously made,  that  he  could  not  accept  the  proclamation  of  a  war 
zone  as  *'an  abbreviation  of  the  rights  of  American  shipmasters 
or  of  American  citizens  bound  on  lawful  errands  as  passengers  on 
merchant  ships  of  belligerent  nationality,"  and  that  the  United 
States  intended  to  hold  the  Imperial  German  Government  "to  a  strict 
accountability  for  any  infringement  of  those  rights,  intentional  or 
incidental."  Secretary  Bryan  further  stated,  on  behalf  of  the  United 
States  Government,  that  Germany  should,  in  the  conduct  of  naval 
warfare,  admit  and  act  upon  the  principle  that  the  lives  of  non- 
combatants,  whether  they  be  enemy  or  neutral,  "cannot  lawfully  or 
rightfully  be  put  in  jeopardy  by  the  capture  or  destruction  of  an 
unarmed  merchantman"  and  that  the  Imperial  German  Government 
should,  "as  all  other  nations  do,"  recognize  "the  obligation  to  take 
the  usual  precaution  of  visit  and  search  to  ascertain  whether  a  sus- 
pected merchantman  is  in  fact  of  belligerent  nationality  or  is  in  fact 
carrying  contraband  of  war  under  a  neutral  flag";  that,  if  the  sub- 
marine could  not  comply  with  the  requirements  of  international  law 
as  hitherto  understood  and  accepted  in  the  premises,  the  use  of  such 
an  instrumentality  could  not  be  permitted;  and  the  United  States 
made  it  very  clear  in  this  note  that  it  was  impossible  to  conform  the 
actions  of  the  submarine  to  the  requirements  of  international  law, 
and  that  therefore  the  submarine  was  an  outlaw  in  the  domain  of 
law.    Thus : 

The  Government  of  the  United  States,  therefore,  desires  to 
call  the  attention  of  the  Imperial  German  Government  with  the 
utmost  earnestness  to  the  fact  that  the  objection  to  their  present 
method  of  attack  against  the  trade  of  their  enemies  lies  in  the 
practical  impossibility  of  employing  submarines  in  the  destruc- 
tion of  commerce  without  disregarding  those  rules  of  fairness, 
reason,  justice,  and  humanity  which  all  modern  opinion  regards 
as  imperative.  It  is  practically  impossible  for  the  officers  of 
a  submarine  to  visit  a  merchantman  at  sea  and  examine  her 
papers  and  cargo.  It  is  practically  impossible  for  them  to  make 
a  prize  of  her;  and,  if  they  cannot  put  a  prize  crew  on  board 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.  132. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    153 

of  her,  they  cannot  sink  her  without  leaving  her  crew  and  all 
on  board  of  her  to  the  mercy  of  the  sea  in  her  small  boats.^ 

After  a  statement  of  the  right  of  American  citizens  to  send  their 
ships  and  to  intrust  their  persons  upon  enemy  ships  upon  the  high 
seas  and  within  the  war  zone  without  jeopardy  to  their  lives,  and  after 
making  it  easy  for  the  Imperial  German  Government  to  disavow  the 
act  of  the  submarine  on  the  ground  of  failure  to  recognize  the 
noncontraband  character  of  its  cargo,  Secretary  Bryan  stated  on 
behalf  of  his  Government  that : 

It  confidently  expects,  therefore,  that  the  Imperial  German 
Government  will  disavow  the  acts  of  which  the  Government  of 
the  United  States  complains,  that  they  will  make  reparation  so 
far  as  reparation  is  possible  for  injuries  which  are  without  meas- 
ure, and  that  they  will  take  immediate  steps  to  prevent  the 
recurrence  of  anything  so  obviously  subversive  of  the  principles 
of  warfare  for  which  the  Imperial  German  Government  have  in 
the  past  so  wisely  and  so  firmly  contended.  ^ 

He  made  it  clear  that  the  United  States  did  not  rely  wholly  upon 
principles  of  international  law,  but  that  its  rights  in  the  premises 
were  based  upon  the  Treaty  of  1828  between  the  United  States  and 
the  Kingdom  of  Prussia,  although  he  did  not  stop  to  specify 
its  provisions.  He  also  called  attention  to  the  fact  that  expressions 
of  regret  * '  satisfy  international  obligations,  if  no  loss  of  life  results, ' ' 
but  that  they  cannot  recall  the  dead  or  justify  their  sacrifice.  He  also 
stated  it  to  be  the  intention  of  the  United  States  to  perform  "its 
sacred  duty  of  maintaining  the  rights  of  the  United  States  and  its 
citizens  and  of  safeguarding  their  free  exercise  and  enjoyment"; 
and  he  did  so  in  the  gentlest  of  terms  under  the  greatest  of  provo- 
cations. Notwithstanding  the  fate  of  Belgium  before  his  eyes  and 
the  lawlessness  of  the  submarine,  he  recalled  ''the  humane  and  en- 
lightened attitude  hitherto  assumed  by  the  Imperial  German  Govern- 
ment in  matters  of  international  right  and  particularly  with  regard 
to  the  freedom  of  the  seas."  Further,  ''having  learned  to  recognize 
the  German  views  and  the  German  influence  in  the  field  of  inter- 
national obligation  as  always  engaged  upon  the  side  of  justice  and 
humanity;  and  having  understood  the  instructions  of  the  Imperial 
German  Government  to  its  naval  commanders  to  be  upon  the  same 
plane   of  humane   action  prescribed   by   the   naval   codes   of   other 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.   131. 
2  Ibid.,   pp.   132-133. 


154        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Nations,  the  Government  of  the  United  States  was  loath  to  believe — 
it  cannot  now  bring  itself  to  believe — that  these  acts,  so  absolutely 
contrary  to  the  rules,  the  practices,  and  the  spirit  of  modern  war- 
fare, could  have  the  countenance  or  sanction  of  that  great  Gov- 
ernment." ^ 

A  note  of  this  kind,  in  its  assertion  of  American  rights,  courteous 
and  friendly  in  their  statement,  required  either  an  acknowledgment 
or  a  repudiation  of  those  rights  and  a  justification  of  the  conduct  of 
the  Imperial  German  Government  alleged  to  be  in  violation  not  merely 
of  rights  but  of  elementary  principles  of  humanity ;  but  the  Imperial 
Government  did  not  appreciate  the  gravity  of  the  situation. 

In  the  course  of  the  correspondence  dealing  with  this  question, 
which  fully  stated  its  views,  the  Imperial  German  Secretary  referred 
to  the  friendly  manner  in  which  the  American  Government  had  pre- 
sented its  case,  and  declared  that,  if  American  vessels  had  come  to 
grief  "through  the  German  submarine  war  during  the  past  few 
months  by  mistake,"  this  was  "traceable  to  the  misuse  of  flags  by 
the  British  Government  in  connection  with  careless  or  suspicious 
actions  on  the  part  of  captains  of  the  vessels."  After  this  some- 
what labored  and  wholly  infelicitous  introduction,  and  a  belated 
expression  of  regret,  he  replied  to  the  American  assurance  that 
The  Lusitania  was  an  unarmed  merchant  vessel  and  should  be  treated 
as  such,  by  stating  that  The  Lusitania  was  built  with  Government 
funds  as  an  auxiliary  cruiser,  and  that  it  was  carried  on  the  lists 
of  the  British  Admiralty  as  such;  that,  like  all  the  more  valuable 
English  merchant  vessels,  it  was  provided  with  guns  and  ammuni- 
tion and  other  weapons,  and  that,  upon  leaving  New  York,  it  "had 
guns  on  board  which  were  mounted  under  decks  and  masked." 
According,  therefore,  to  the  German  contention.  The  Lusitania  was 
not  an  ordinary  merchant  vessel  and  was  not  entitled  to  be 
treated  as  such  because,  if  not  actually  employed  as  an  auxiliary 
cruiser,  it  nevertheless  could  be  taken  over  by  the  British  Govern- 
ment and  employed  as  such,  and  that  in  any  event  it  was  armed 
during  this  voyage  and  could  not  therefore  be  considered  as  an 
unarmed  vessel. 

A  particular  reference  was  made  to  the  fact  that  the  British 
Government  had  directed  the  use  of  neutral  flags  and  markings,  and, 
when  so  disguised,  "to  attack  submarines  by  ramming  them."  It  is 
important  to  note  this  statement,  because  the  Imperial   Secretary 

'  OSicial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  130. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     155 

gives  it  as  the  reason  for  the  failure  on  the  part  of  the  German 
commanders  to  observe  the  generally  recognized  principles  of  inter- 
national law,  saying  expressly,  "the  German  commanders  are  con- 
sequently no  longer  in  a  position  to  observe  the  rules  of  capture 
otherwise  usual  and  with  which  they  invariably  complied 
before  this."  Here  is  an  admission  that  the  action  of  the  German 
commanders  was  not  in  accordance  with  international  law,  and,  if 
justifiable  at  all,  it  could  only  be  upon  the  ground  of  retaliation 
for  the  unlawful  acts  of  its  enemy  and  only  if  confined  to  the  enemy 
and  not  extended  to  innocent  and  unoffending  neutrals. 

Finally,  the  Imperial  Secretary  asserted  that  The  Lusitania,  as  on 
earlier  occasions,  "had  Canadian  troops  and  munitions  on  board, 
including  not  less  than  5,400  cases  of  ammunition."  TJie  Lusitania, 
therefore,  was  not  merely  to  be  considered  as  a  possible  auxiliary, 
but  as  an  armed  merchant  vessel  using  a  neutral  flag  as  a  ruse  de 
guerre  under  instructions  to  carry  on  warfare  by  attacking  sub- 
marines, and  as  a  transport  because  carrying  a  cargo  of  contraband 
and  Canadian  troops. 

Instead,  therefore,  of  a  repudiation  of  the  instructions  to  the 
German  naval  officers  and  a  disavowal  of  the  act  as  unauthorized, 
Herr  von  Jagow  expressly  justified  both  the  instructions  and  the 
act  on  the  ground  that  "The  Imperial  German  Government  believes 
that  it  acts  in  just  self-defense  when  it  seeks  to  protect  the  lives  of 
its  soldiers  by  destroying  ammunition  destined  for  the  enemy  with 
the  means  of  war  at  its  command. ' '  ^ 

Without  directly  charging  that  the  American  passengers  had  made 
the  trip  in  order  to  protect  The  Lusitania  from  destruction,  the 
Imperial  Secretary  states  that  the  company  "deliberately  tried  to 
use  the  lives  of  American  citizens  as  protection  for  the  ammunition 
carried, '  *  ^  and  that  the  company  '  *  violated  the  clear  provisions  of 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.  133-135. 

2  If  Great  Britain  had  "  deliberately  tried  to  use  the  lives  of  American  citi- 
zens as  protection  for  the  ammunition  carried,"  it  would  have  had  authority 
of  no  mean  order  for  its  action.  Thus,  the  Kriegsbrauch  im  Landkriege  (pp.  49- 
50)   says: 

The  German  army  command  instituted  a  new  application  of  the  "  hostage- 
right"  in  the  war  of  1870-1871  by  compelling  prominent  citizens  of  French 
towns  and  villages  to  ride  on  the  locomotives  of  trains,  in  order  to  safe- 
guard the  railroad  communications  which  were  threatened  by  the  people. 
Peaceful  inhabitants  thus,  without  any  fault  on  their  part,  were  placed 
in  serious  danger.  Authorities  outside  of  Germany  regarded  this  measure 
as  contrary  to  international  law,  and  as  unjustified  with  regard  to  the 
nationals  of  the  enemy  country.  As  against  this  unfavorable  judgment, 
attention  must  be  called  to  the  fact  that,  while  Germany  also  regarded 
it  as  rigorous  and  cruel,  the  means  was  resorted  to  only  after  explanations 


156        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

American  laws  which  expressly  prohibit,  and  provide  punishment 
for,  the  carrying  of  passengers  on  ships  which  have  explosives  on 
board."  ^  We  are  thus  prepared  for  the  conclusion,  which  the 
Imperial  Secretary  does  not  leave  us  to  draw  but  which  he  himself 
states,  that  "the  company  thereby  wantonly  caused  the  death  of  so 
many  passengers."' 

On  the  9th  of  June  Mr.  Lansing,  who  had  succeeded  Mr.  Bryan 
as  Secretary  of  State,  sent  a  note  to  the  American  Ambassador  to 
Berlin,  directing  him  to  deliver  it  "textually"  to  the  German  Min- 
ister of  Foreign  Affairs.  This  note  was  intended  to  be  and  it  was 
a  clean-cut  and  authoritative  statement  of  the  views  of  the  American 
Government  on  the  questions  involved  in  the  sinking  of  The  Lusitania. 
In  the  first  place.  Secretary  Lansing  summarizes  and  states  the 
charges  of  the  German  Government,  in  order  that  his  reply  may  be 
responsive  to  those  charges.     Thus: 

It  is  stated  in  the  note  that  The  Lusitania  was  undoubtedly 
equipped  with  masked  guns,  supplied  with  trained  gunners  and 
special  ammunition,  transporting  troops  from  Canada,  carrying 
a  cargo  not  permitted  under  the  laws  of  the  United  States  to  a 
vessel  also  carrying  passengers,  and  serving,  in  virtual  effect,  as 
an  auxiliary  to  the  naval  forces  of  Great  Britain.^ 

These,  Secretary  Lansing  says,  are  questions  of  fact,  concerning  which 
he  was  in  a  position  to  supply  the  Imperial  German  Government  with 
official  information.  If  true,  he  admitted  that  the  United  States 
would  be  taxed  with  duties  in  the  premises.    For  example,  he  said: 

It  was  its  duty  to  see  to  it  that  The  Lusitania  was  not  armed 
for  offensive  action,  that  she  was  not  serving  as  a  transport,  that 
she  did  not  carry  a  cargo  prohibited  by  the  statutes  of  the  United 
States,  and  that,  if  in  fact  she  was  a  naval  vessel  of  Great  Britain, 
she  should  not  receive  clearance  as  a  merchantman.^ 

After  admitting  the  duty  incumbent  upon  the  United  States,  he 
stated  that  "it  performed  that  duty  and  enforced  its  statutes  with 

and  instructions  given  to  the  population  had  proved  ineffective,  and  because 
it  was  the  only  measure  which  promised,  in  the  particular  circumstances, 
to  be  successful  with  regard  to  an  undoubtedly  unjustified,  nay,  criminal 
conduct  of  a  fanatical  population.  Herein  lies  its  justification,  under  the 
rules  of  war,  but  even  more  in  the  fact  that  the  measure  met  with  full 
success,  and  that  wherever  prominent  persons  thus  accompanied  trains, 
whether  owing  to  the  increased  watchfulness  of  the  communities  or  to 
the  immediate  effect  upon  the  people,  the  security  of  traffic  was  restored. 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  136. 
2  Ibid.,  p.    139. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    157 

scrupulous  vigilance  through  its  regularly  constituted  officials,"  and 
that  he  was  able  "to  assure  the  Imperial  German  Government  that 
it  has  been  misinformed. ' '  ^ 

The  importance  of  this  statement  is  fundamental,  because  these 
very  facts  were  advanced  by  the  Imperial  German  Government  in 
justification  of  the  sinking  of  The  Lusitania,  and  if  the  alleged  facts 
were  found  to  be  nonexistent  the  special  justification  of  the  German 
Government  fell  with  the  facts.  Secretary  Lansing,  assuming  respon- 
sibility on  behalf  of  his  Government  for  the  nonexistence  of  the  facts 
as  alleged,  therefore  eliminated  them  from  discussion  and  devoted  his 
attention  to  the  principles  of  law  which  should  govern  The  Lusitania 
case  in  the  absence  of  special  facts  and  circumstances.    Thus  he  said : 

Whatever  be  the  other  facts  regarding  The  Lusitania,  the 
principal  fact  is  that  a  great  steamer,  primarily  and  chiefly  a 
conveyance  for  passengers,  and  carrying  more  than  a  thousand 
souls  who  had  no  part  or  lot  in  the  conduct  of  the  war,  was 
torpedoed  and  sunk  without  so  much  as  a  challenge  or  a  warning, 
and  that  men,  women,  and  children  were  sent  to  their  death  in 
circumstances  unparalleled  in  modern  warfare.  The  fact  that 
more  than  one  hundred  American  citizens  were  among  those  who 
perished  made  it  the  duty  of  the  Government  of  the  United 
States  to  speak  of  these  things  and  once  more,  with  solemn  em- 
phasis, to  call  the  attention  of  the  Imperial  German  Government 
to  the  grave  responsibility  which  the  Government  of  the  United 
States  conceives  that  it  has  incurred  in  this  tragic  occurrence, 
and  to  the  indisputable  principle  upon  which  that  responsibility 
rests.^ 

Secretary  Lansing  conceived  and  therefore  stated  that: 

The  Government  of  the  United  States  is  contending  for  some- 
thing much  greater  than  mere  rights  of  property  or  privileges 
of  commerce.^ 

He  did  not,  however,  leave  the  Imperial  German  Government  in  doubt 
as  to  the  principles  involved,  saying: 

It  is  contending  for  nothing  less  high  and  sacred  than  the 
rights  of  humanity,  which  every  Government  honors  itself  in 
respecting  and  which  no  Government  is  justified  in  resigning  on 
behalf  of  those  under  its  care  and  authority.^ 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.  139. 

Gustav  Stalil,  a  German  reservist,  made  an  affidavit  in  the  premises  regarding 
the  armament  of  The  Lusitania,  which  affidavit  was  forwarded  to  the  Depart- 
ment of  State  by  Ambassador  von  Bernstorff.  Stahl  later  admitted  that  the 
affidavit  was  false,  pleaded  guilty  to  an  indictment  charging  perjury,  and  was 
sentenced  to  the  penitentiary.  (H.  R.  Report  No.  1,  G5th  Cong.,  1st  session; 
Congressional  Record,  vol.  55,  No.  4,  p.  193.) 

2  Ibid.,  p.  140. 


158        A  SURVEY  OP  INTERNATIONAL  RELATIONS 

He  then  proceeded  to  state  the  rule  of  law  by  which  the  German 
commander  should  have  guided  his  conduct.    Thus: 

Only  her  actual  resistance  to  capture  or  refusal  to  stop  when 
ordered  to  do  so  for  the  purpose  of  visit  could  have  afforded  the 
commander  of  the  submarine  any  justification  for  so  much  as 
putting  the  lives  of  those  on  board  the  ship  in  jeopardy.^ 

In  the  preceding  portion  of  the  note  he  had  called  attention  to  the 
contentions  of  the  German  Government  in  the  sinking  of  The  Falaha, 
and  as  the  principles  which  he  laid  down  in  that  matter  were  in  his 
mind  and  within  the  knowledge  of  the  Imperial  German  Secretary 
when  he  read  this  statement  concerning  The  Lusitania,  they  are  here 
quoted,  in  order  that  the  reader  may  be  in  the  position  of  the  Secre- 
taries of  State  of  the  respective  Governments.    Thus: 

With  regard  to  the  sinking  of  the  steamer  Falaha,  by  which  an 
American  citizen  lost  his  life,  the  Government  of  the  United 
States  is  surprised  to  find  the  Imperial  German  Government  con- 
tending that  an  effort  on  the  part  of  a  merchantman  to  escape 
capture  and  secure  assistance  alters  the  obligation  of  the  officer 
seeking  to  make  the  capture  in  respect  of  the  safety  of  the  lives  of 
those  on  board  the  merchantman,  although  the  vessel  has  ceased 
her  attempt  to  escape  when  torpedoed.  These  are  not  new  cir- 
cumstances. They  have  been  in  the  minds  of  statesmen  and  of 
international  jurists  throughout  the  development  of  naval  war- 
fare, and  the  Government  of  the  United  States  does  not  under- 
stand that  they  have  ever  been  held  to  alter  the  principles  of 
humanity  upon  which  it  has  insisted.  Nothing  but  actual  forcible 
resistance  or  continued  efforts  to  escape  by  flight  when  ordered  to 
stop  for  the  purpose  of  visit  on  the  part  of  the  merchantman  has 
ever  been  held  to  forfeit  the  lives  of  her  passengers  or  crew.^ 

"With  jthese  principles  before  his  eyes  the  reader  will  understand 
the  full  meaning  and  importance  of  the  following  passage  of  the 
note  immediately  succeeding  the  passage  already  quoted  concerning 
The  Lusitania: 

This  principle  the  Government  of  the  United  States  under- 
stands the  explicit  instructions  issued  on  August  3,  1914,  by 
the  Imperial  German  Admiralty  to  its  commanders  at  sea  to 
have  recognized  and  embodied,  as  do  the  naval  codes  of  all  other 
nations,  and  upon  it  every  traveler  and  seaman  had  a  right  to 
depend.  It  is  upon  this  principle  of  humanity  as  well  as  upon 
the  law  founded  upon  this  principle  that  the  United  States  must 
stand.^ 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  140. 
2 /bid.,  p.  139. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      159 

In  conclusion,  Secretary  Lansing  called  attention  to  the  note  of  the 
15th  of  May,  and  reaffirmed  the  principles  there  stated,  repudiated 
the  binding  effect  of  a  proclamation,  to  which  the  United  States  did 
not  consent,  to  abbreviate  the  rights  of  American  citizens  upon  the 
high  seas,  and  voiced  the  expectation  of  the  United  States  that  Ger- 
many would  modify  submarine  warfare  in  such  a  way  as  to  conform 
to  these  principles,  which  were  not  merely  the  principles  and  prac- 
tice of  the  United  States,  but  the  principles  and  practice  of  Nations, 
because  they  were  the  prescribed  practice  of  humanity.    Thus : 

The  Government  of  the  United  States  cannot  admit  that  the 
proclamation  of  a  war  zone  from  which  neutral  ships  have  been 
warned  to  keep  away  may  be  made  to  operate  as  in  any  degree 
an  abbreviation  of  the  rights  either  of  American  shipmasters 
or  of  American  citizens  bound  on  lawful  errands  as  passengers 
on  merchant  ships  of  belligerent  nationality.  It  does  not  under- 
stand the  Imperial  German  Government  to  question  those  rights. 
It  understands  it,  also,  to  accept  as  established  beyond  question 
the  principle  that  the  lives  of  noncombatants  cannot  lawfully  or 
rightfully  be  put  in  jeopardy  by  the  capture  or  destruction  of 
an  unresisting  merchantman,  and  to  recognize  the  obligation  to 
take  sufficient  precaution  to  ascertain  whether  a  suspected  mer- 
chantman is  in  fact  of  belligerent  nationality  or  is  in  fact  carry- 
ing contraband  of  war  under  a  neutral  flag.  The  Government 
of  the  United  States  therefore  deems  it  reasonable  to  expect  that 
the  Imperial  German  Government  will  adopt  the  measures  neces- 
sary to  put  these  principles  into  practice  in  respect  of  the  safe- 
guarding of  American  lives  and  American  ships,  and  asks  for 
assurances  that  this  will  be  done.' 

On  July  8,  1915,^  a  month  lacking  two  days  after  the  receipt  of 
Secretary  Lansing's  note,  the  Imperial  German  Secretary  transmitted 
the  reply  of  his  Government,  observing  with  satisfaction  **how  earn- 
estly the  Government  of  the  United  States  is  concerned  in  seeing  the 
principles  of  humanity  realized  in  the  present  war,"  and  receiving 
with  gratitude  the  statements  contained  in  the  American  note  of 
May  15,  1915,  that  Germany  "had  always  permitted  itself  to  be  gov- 
erned by  the  principles  of  progress  and  humanity  in  dealing  with  the 
law  of  maritime  war, ' '  and  expressing  the  hope  that,  after  the  war  and 
perhaps  earlier,  it  may  be  possible  to  "regulate  the  law  of  maritime 
war  in  a  manner  guaranteeing  the  freedom  of  the  seas. ' '  The  Imperial 
German  Secretary  then  proceeded  to  a  justification  of  the  destruction 
of  TJie  Lusitania. 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  141. 
2  Ibid.,  p.  149. 


160        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

He  began  by  denouncing  British  action  as  contrary  to  the  gen- 
erally recognized  principles  of  maritime  warfare,  and  then  made  the 
usual  statement  that  Germany  has,  as  an  act  of  self-defense,  been 
forced  to  submarine  warfare.    To  quote  his  exact  language: 

While  our  enemies  thus  loudly  and  openly  have  proclaimed 
war  without  mercy  until  our  utter  destruction,  we  are  conduct- 
ing war  in  self-defense  for  our  national  existence  and  for  the 
sake  of  peace  of  assured  permanency.  We  have  been  obliged 
to  adopt  submarine  warfare  to  meet  the  declared  intentions  of 
our  enemies  and  the  method  of  warfare  adopted  by  them  in 
contravention  of  international  law.' 

This  is  the  usual  cry  of  distress  of  the  belligerent  which  finds  itself 
at  the  mercy  of  its  enemy,  and  its  constant  repetition  would  suggest 
that  neutrals  are  somewhat  hard  of  hearing.  During  the  Civil  War 
Secretary  Seward  sought  to  enlist  the  sympathies  of  Great  Britain 
by  informing  Her  Majesty's  Government  that  the  war  in  which  his 
country  was  then  engaged  was  a  war  of  liberty  and  therefore  deserv- 
ing of  the  sympathy  of  Great  Britain  and  that,  as  it  was  a  war  of 
existence,  the  United  States  felt  that  Great  Britain,  appreciating  this 
fact,  would  be  a  mild  and  sympathetic  judge  of  its  breaches  of  the 
law.  The  shortest  way,  however,  as  the  United  States  found,  to  obtain 
the  sympathy  and  the  respect  of  neutral  countries  is  for  the  belliger- 
ent to  conform  its  actions  to  the  requirements  of  law. 

The  principal  grievance  mentioned  is  that  "Germany's  adver- 
saries .  .  .  have  aimed  from  the  very  beginning  ...  at  the 
destruction  not  so  much  of  the  armed  forces  as  the  life  of  the  Ger- 
man nation,  repudiating  in  so  doing  all  the  rules  of  international 
law  and  disregarding  all  the  rights  of  neutrals. "  -  To  show  that  this 
was  no  new  thing  for  Great  Britain,  he  adroitly  cited  the  following 
illustration  from  recent  history,  knowing  that  it  would  not  be  lost 
upon  the  American  public  which  sympathized  with  the  Boers  in  their 
heroic  struggle  against  Great  Britain:  "Just  as  was  the  case  with 
the  Boers,  the  German  people  is  now  to  be  given  the  choice  of 
perishing  from  starvation,  with  its  women  and  children,  or  of  relin- 
quishing its  independence."  '  It  was  perhaps  not  to  be  expected  that 
the  Imperial  German  Secretary  should  say  in  this  connection  that 
Germany  supplied  Great  Britain  with  the  arms  and  ammunition 
which  ended  the  Boers,  but  such  is  the  fact,  as  already  pointed  out. 

'  Official  text,  American  Journal  of  International  Lata,  Special  Supplement, 
July,  1915,  p.  151. 

2 Ibid.,  p.   150.  'Ibid.,  p.    151. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      161 

The  first  illustration  of  British  disregard  of  all  the  rules  of  inter- 
national law  and  of  all  the  rights  of  neutrals  was  the  declaration  of 
November  3,  1914,  of  the  North  Sea  as  a  war  area ;  the  second  was  by 
"planting  poorly  anchored  mines";  the  third  was  the  stoppage  and 
capture  of  vessels,  making  "passage  extremely  dangerous  and  diffi- 
cult for  neutral  shipping,  so  that  it  is  actually  blockading  neutral 
coasts  and  ports  contrary  to  all  international  law."  Admitting  that 
each  of  the  actions  specified  was  wrong,  this  does  not  condone  a  wrong 
on  Germany's  part.  Thus,  in  the  Imperial  Secretary's  actual,  meas- 
ured language  and  mature  judgment,  "Germany  was  driven  to  sub- 
marine war  on  trade." 

He  was,  however,  apparently  worried  by  the  consequences  which 
might  flow  from  the  injury  to  neutral  life  and  property  in 
unrestricted  submarine  warfare,  and  crediting  his  Government  with 
the  desire  and  the  effort  "in  principle  to  protect  neutral  life  and 
property  from  damage  as  much  as  possible" — consistent,  he  might 
have  added,  with  the  success  of  the  undertaking — "the  German  Gov- 
ernment, ' '  he  continues,  ' '  recognized  unreservedly  in  its  memorandum 
of  February  4th  that  the  interests  of  neutrals  might  suffer  from  sub- 
marine warfare." 

We  now  come  to  the  one  reason  which,  in  the  opinion  of  the 
Imperial  Secretary,  speaking  in  the  name  and  in  behalf  of  the 
Imperial  German  Government,  justifies  submarine  warfare  and  any 
kind  of  warfare  calculated  to  crown  the  German  arms  with  success: 

However,  the  American  Government  will  also  understand  and 
appreciate  that  in  the  fight  for  existence  which  has  been  forced 
upon  Germany  by  its  adversaries  and  announced  by  them,  it  is 
the  sacred  duty  of  the  Imperial  Government  to  do  all  within 
its  power  to  protect  and  to  save  the  lives  of  German  subjects. 
If  the  Imperial  Government  were  derelict  in  these,  its  duties, 
it  would  be  guilty  before  God  and  history  of  the  violation  of 
those  principles  of  the  highest  humanity  which  are  the  founda- 
tion of  every  national  existence.^ 

If  Germany  can  do  this.  Great  Britain  may  also  do  it,  as  well  as 
the  United  States,  in  its  war  with  Germany,  and  we  would  find  our- 
selves in  that  state  of  nature  described  by  Hobbes,  in  which  there 
wotfld  exist,  "no  arts,  no  letters,  no  society;  and  which  is  worst  of 
all,  continual  fear  and  danger  of  violent  death,  and  the  life  of  man 
solitary,  poor,  nasty,  brutish,   and  short. ' '  ^     This  quotation  from 

^  Official  text,  American  Journal  of  International  Laio,  Special  Supplement, 
July,   1915,  p.   151. 

2  Hobbes'  Leviathan   (London,  1887),  chap.  13,  p.  64. 


162        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Hobbes  is  aptly  borne  out  by  the  case  of  Tlie  Lusitania,  to  which  the 
Imperial  Secretary  now,  and  for  the  first  time  in  his  note,  devotes 
his  attention,  justifying  the  act  of  his  Government  by  blaming  its 
adversary,  unconsciously  no  doubt  following  Lord  Mansfield's 
humorous  advice,  "No  case,  abuse  plaintiff's  attorney."  "The  case  of 
The  Lusitania,"  he  says,  "shows  with  horrible  clearness  to  what 
jeopardizing  of  human  lives  the  manner  of  conducting  war  employed 
by  our  adversaries  leads,"  declaring  that,  by  the  order  to  British 
merchantmen  to  arm  themselves  and  to  ram  submarines  "and  the 
promise  of  rewards  therefor,"  neutrals  traveling  upon  merchantmen 
had  been  exposed  "  in  an  increasing  degree ' '  to  all  the  dangers  of  war. 
And  to  show  what  is  meant  by  the  dangers  of  war,  the  Secretary  next 
Bays,  and  it  is  his  language  which  is  quoted,  that  "if  the  commander 
of  the  German  submarine  which  destroyed  The  Lusitania  had  caused 
the  crew  and  travelers  to  put  out  in  boats  before  firing  the  torpedo 
this  would  have  meant  the  sure  destruction  of  his  own  vessel." 
Unconsciously,  in  the  succeeding  passage,  he  points  out  the  value 
of  experience,  not  merely  in  the  laboratory,  but  in  the  science  of 
warfare  upon  the  high  seas,  saying  that  "after  the  experiences  in 
the  sinking  of  much  smaller  and  less  seaworthy  vessels,  it  was  to 
be  expected  that  a  mighty  ship  like  The  Lusitania  would  remain 
above  water  long  enough,  even  after  the  torpedoing,  to  permit  the 
passengers  to  enter  the  ship's  boats."  Here  is  an  admission  that 
Germany  had  been  sinking  "much  smaller  and  less  seaworthy  ves- 
sels," and  apparently  the  German  submarine  commander  had  the 
right  to  expect  better  workmanship  at  the  hands  of  British  ship- 
wrights. But  as  this  was  the  largest  ship  which  the  Germans  had 
sunk,  the  commander  of  the  submarine  should  not  perhaps  be 
condemned  for  the  vulnerability  of  his  target,  especially  as  there 
was  another  reason.  "Circumstances  of  a  very  peculiar  kind,"  to 
quote  the  Secretary,  "especially  the  presence  on  board  of  large  quan- 
tities of  highly  explosive  materials,  defeated  this  expectation."  It 
may  be  said  in  passing,  that  the  presence  of  these  explosives  has  not 
been  proven,  but  however  that  may  be,  the  Secretary  advanced  a 
conclusive  reasoning,  saying: 

In  addition,  it  may  be  pointed  out  that  if  The  Lusitania  had 
been  spared  thousands  of  cases  of  ammunition  would  have  been 
sent  to  Germany's  enemies  and  thereby  thousands  of  German 
mothers  and  children  robbed  of  their  supporters.^ 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.   152. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      163 

Again  it  should  be  said  in  this  connection  that  it  has  not  been  proven 
that  thousands  of  cases  of  ammunition  formed  a  part  of  the  cargo  of 
The  Lusitania,  but  it  is  admitted  that  hundreds  of  passengers  did, 
and  that  of  these  some  hundred  American  men,  women,  and  children 
lost  their  lives  that  German  mothers  and  children  might  not  be  robbed 
of  their  supporters. 

It  is  to  be  borne  in  mind,  in  considering  this  case,  that  the  Ger- 
man Government  in  its  various  notes  holds  itself  out  as  imbued  with 
the  spirit  of  friendship  for  the  American  people  and  as  desirous 
*'to  do  all  it  can  during  the  present  war  also  to  prevent  the  jeopard- 
izing of  the  lives  of  American  citizens."  Because  of  this  the  Secre- 
tary, in  behalf  of  his  country,  thereupon  states  that : 

The  Imperial  Government  therefore  repeats  the  assurances 
that  American  ships  will  not  be  hindered  in  the  prosecution  of 
legitimate  shipping,  and  the  lives  of  American  citizens  on  neu- 
tral vessels  shall  not  be  placed  in  jeopardy.^ 

But  it  is  to  be  observed  that  this  assurance  is  limited  to  legitimate 
shipping,  as  to  which  the  views  of  Germany  and  of  the  United  States 
might  be  opposed,  and  only  "the  lives  of  American  citizens  on  neu- 
tral vessels"  are  not  to  be  placed  in  jeopardy.  The  vessel  is  to  be 
engaged  in  legitimate  shipping  and  it  is  to  be  neutral.  Otherwise, 
the  lives  of  American  citizens  might,  under  this  concession,  be  placed 
in  jeopardy. 

In  the  next  paragraph  the  concession  is  further  restricted  to  pas- 
senger ships,  and  the  carriage  of  contraband  is  apparently  excluded 
from  ''the  prosecution  of  legitimate  shipping."    Thus: 

In  order  to  exclude  any  unforeseen  dangers  to  American 
passenger  steamers,  made  possible  in  view  of  the  conduct  of  mari- 
time war  on  the  part  of  Germany's  adversaries,  the  German  sub- 
marines will  be  instructed  to  permit  the  free  and  safe  passage 
of  such  passenger  steamers  when  made  recognizable  by  special 
markings  and  notified  a  reasonable  time  in  advance.  The  Im- 
perial Government,  however,  confidently  hopes  that  the  Ameri- 
can Government  will  assume  the  guarantee  that  these  vessels 
have  no  contraband  on  board.  The  details  of  the  arrangements 
for  the  unhampered  passage  of  these  vessels  would  have  to  be 
agreed  upon  by  the  naval  authorities  of  both  sides.' 

As  indicating  the  nature  and  extent  of  the  desire  to  spare  Ameri- 
can citizens  engaged  in  the  prosecution  of  legitimate  shipping,  the 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.    152. 


164        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Imperial  Secretary  makes  two  propositions  which,  lest  they  be  mis- 
understood or  unintentionally  modified  in  a  paraphrase,  are  quoted 
in  his  own  language: 

In  order  to  furnish  adequate  facilities  for  travel  across  the 
Atlantic  Ocean  for  American  citizens,  the  German  Government 
submits  for  consideration  a  proposal  to  increase  the  number  of 
available  steamers  by  installing  in  the  passenger  service  a  rea- 
sonable number  of  neutral  steamers,  the  exact  number  to  be 
agreed  upon,  under  the  American  flag  under  the  same  condi- 
tions as  the  American  steamers  above  mentioned. 

The  Imperial  Government  believes  that  it  can  assume  that 
in  this  manner  adequate  facilities  for  travel  across  the  Atlantic 
Ocean  can  be  afforded  American  citizens.  There  would  there- 
fore appear  to  be  no  compelling  necessity  for  American  citizens 
to  travel  to  Europe  in  time  of  war  on  ships  carrying  an  enemy 
flag.  In  particular  the  Imperial  Government  is  unable  to  admit 
that  American  citizens  can  protect  an  enemy  ship  through  the 
mere  fact  of  their  presence  on  board.  Germany  merely  followed 
England's  example  when  it  declared  part  of  the  high  seas  an 
area  of  war.  Consequently  accidents  suffered  by  neutrals  on 
enemy  ships  in  this  area  of  war  cannot  well  be  judged  differ- 
ently from  accidents  to  which  neutrals  are  at  all  times  exposed 
at  the  seat  of  war  on  land  when  they  betake  themselves  into 
dangerous  localities  in  spite  of  previous  warning.^ 

By  way  of  comment  upon  this  concession  it  may  be  said  that  if 
Americans  possess  a  right  to  use  belligerent  merchantmen  for  travel 
or  for  trade,  a  right  which  the  Supreme  Court  of  the  United  States 
has  solemnly  declared  to  exist,  in  a  case  of  The  Nereide,  later  to  be 
considered,  it  is  for  the  American  citizen  possessing  the  right  to 
■determine  whether  he  will  use  it  or  not,  not  the  person  illegally  oppos- 
ing the  use  of  this  right.  In  the  next  place  it  may  be  observed  that  the 
comparison  between  land  and  naval  warfare  is  not  well  drawn,  because 
land  is  occupied  and  can  be  controlled  by  the  occupant  stepping  into 
the  shoes,  as  it  were,  and  assuming  the  functions  of  its  owner,  whereas 
the  high  seas  cannot  be  occupied  to  the  exclusion  of  any  one  nation, 
because  no  nation  can  lawfully  exercise  exclusive  jurisdiction  upon 
the  high  seas,  which  are  the  patrimony  of  the  nations,  open  to  all 
nations,  and  in  which  all  nations  have  equal  rights  of  which  they 
cannot  be  deprived  without  their  own  consent.  In  this  connection  it 
is  only  necessary  to  declare  that  the  United  States  has  not  consented 
to  be  deprived  of  its  rights  upon  the  high  seas,  either  by  Great  Britain 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  152-153. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    165 

or  its  allies  or  by  Germany  and  its  allies,  or  by  all  of  them  put 
together. 

The  second  proposition  is  thus  worded : 

If,  however,  it  should  not  be  possible  for  the  American  Gov- 
ernment to  acquire  an  adequate  number  of  neutral  passenger 
steamers,  the  Imperial  Government  is  prepared  to  interpose  no 
objections  to  the  placing  under  the  American  flag  by  the  Ameri- 
can Government  of  four  enemy  passenger  steamers  for  the  pas- 
senger traffic  between  America  and  England.  The  assurances  of 
"free  and  safe"  passage  for  American  passenger  steamers  would 
then  be  extended  to  apply  under  the  identical  pre-conditions  to 
these  formerly  hostile  passenger  ships.^ 

This  concession  but  adds  insult  to  injury. 

The  note  of  the  Imperial  German  Government  of  July  8,  1915, 
was  duly  received  by  the  Department  of  State,  and  it  was  con- 
sidered so  important  that  the  reply  of  Secretary  Lansing  was  cabled 
instead  of  being  sent  through  the  mails.  The  very  first  sentence  of 
this  note  states  that  the  Government  of  the  United  States  finds  the 
German  reply  to  be  very  unsatisfactory,  because  it  failed  "to  meet 
the  real  differences  between  the  two  Governments,"  indicated  "no 
way  in  which  the  accepted  principles  of  law  and  humanity  may  be 
applied  in  the  grave  matter  in  controversy,"  but  proposed,  on  the 
contrary,  "arrangements  for  a  partial  suspension  of  those  principles 
which  virtually  set  them  aside."- 

By  way  of  summary,  the  note  states  the  acceptance  by  the  Imperial 
Oerman  Government  of  the  principle  that  "the  high  seas  are  free, 
that  the  character  and  cargo  of  a  merchantman  must  first  be  ascer- 
tained before  she  can  be  lawfully  seized  or  destroyed,  and  that  the 
lives  of  noncombatants  may  in  no  case  be  put  in  jeopardy  unless 
the  vessel  resists  or  seeks  to  escape  after  being  summoned  to  submit 
to  examination. ' '  ^  Secretary  Lansing  evidently  took  the  Imperial 
Government  at  its  word  that  each  of  its  acts  was  in  retalia- 
tion for  alleged  illegal  acts  of  Great  Britain,  and  he  therefore  de- 
clared them  to  be  illegal  in  the  sense  that  they  were  not  legal,  "for 
a  belligerent  act  of  retaliation, ' '  he  said,  ' '  is  per  se  an  act  beyond  the 
law,  and  the  defense  of  an  act  as  retaliatory  is  an  admission  that  it 
is  illegal. ' '  ^ 

In  coming  to  the  conclusion  that  the  German  Government 
accepted  the  American   contentions   on  the  matter  in   hand,   See- 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.   153. 
2  Ibid.,  p.   155. 


166        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

retary  Lansing  relied  not  merely  upon  the  formal  statements  con- 
tained in  the  correspondence,  but  upon  the  following  statement  made 
to  the  American  Ambassador  on  May  9,  1915,  by  the  German  Foreign 
Office,  which,  taken  in  conjunction  with  the  more  elaborate  docu- 
ments, seems  to  justify  Mr.  Lansing's  conclusions: 

First.  Imperial  German  Government  has  naturally  no  inten- 
tion of  causing  to  be  attacked  by  submarines  or  air  craft  such 
neutral  ships  of  commerce  in  the  zone  of  naval  warfare,  more 
definitely  described  in  the  notice  of  the  German  Admiralty  staff 
of  February  4  last,  as  have  been  guilty  of  no  hostile  act;  on 
the  contrary,  the  most  definite  instructions  have  repeatedly  been 
issued  to  German  war  vessels  to  avoid  attacks  on  such  ships 
under  all  circumstances.  Even  when  such  ships  have  contra- 
band of  war  on  board,  they  are  dealt  with  by  submarines  solely 
according  to  the  rules  of  international  law  applying  to  prize 
warfare. 

Two.  Should  a  neutral  ship,  nevertheless,  come  to  harm 
through  German  submarines  or  air  craft  on  account  of  an  unfor- 
tunate (*  *  *)'  in  the  above-mentioned  zone  of  naval  warfare, 
the  German  Government  will  unreservedly  recognize  its  respon- 
sibility therefor.  In  such  a  ease  it  will  express  its  regrets  and 
afford  damages  without  first  instituting  a  prize  court  action. 

Three.  It  is  the  custom  of  the  German  Government  as  soon 
as  the  sinking  of  a  neutral  ship  in  the  above-mentioned  zone  of 
naval  warfare  is  ascribed  to  German  war  vessels  to  institute  an 
immediate  investigation  into  the  cause.  ...  In  case  the  Ger- 
man Government,  contrary  to  the  viewpoint  of  the  neutral  gov- 
ernment, is  not  convinced  by  the  result  of  the  investigation,  the 
German  Government  has  already  on  several  occasions  declared 
itself  ready  to  allow  the  question  to  be  decided  by  an  inter- 
national investigation  commission  according  to  chapter  three  of 
The  Hague  Convention  of  October  18,  1907,  for  the  peaceful 
solution  of  international  disputes.^ 

It  is  to  be  observed,  in  the  first  place,  that  this  statement  deals 
only  with  neutral  shipments,  not  with  the  contention  of  the  United 
States  that  its  citizens  have  the  right  to  travel  upon  belligerent 
merchant  ships  without  having  their  lives  put  in  jeopardy  by  the 
destruction  of  the  vessel  without  warning  and  without  putting  into 
a  place  of  safety  passengers  and  crew.  It  will  be  noted  in  the 
second  place  that  this  statement  of  the  Foreign  Office,  satisfactory  in 
some  respects,  is  a  misapprehension  of  the  point  of  view  of  the 
neutral,  who  wants  his  rights,  not  compensation  for  their  violation 

'  In  the  official  text  "  *    *    *  "  with  footnote  "  apparent  omission." 
2  Official  text,  American  Journal  of  International  Laio,  Special  Supplement, 
October,  1916,  pp.  161-162. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      167 

and  loss  because  of  injury.  The  German  view  is  that  the  submarine 
can  do  anything  making  for  success  and  that  the  payment  of  dollars 
rights  the  wrong. 

But  to  return  to  the  cable  of  July  21,  1915.  After  expressing 
satisfaction  at  the  acceptance  of  the  American  contentions,  Secretary 
Lansing  insists,  on  behalf  of  the  United  States,  that  acceptance  of 
the  principle  is  not  enough,  for  the  principle  accepted  must  be  ob- 
served in  practice.    Thus,  he  says: 

The  Government  of  the  United  States  is,  however,  keenly 
disappointed  to  find  that  the  Imperial  German  Government  re- 
gards itself  as  in  large  degree  exempt  from  the  obligation  to 
observe  these  principles,  even  where  neutral  vessels  are  con- 
cerned, by  what  it  believes  the  policy  and  practice  of  the  Gov- 
ernment of  Great  Britain  to  be  in  the  present  war  with  regard 
to  neutral  commerce.' 

He  next  proceeds  to  state  that  the  action  of  a  third  Government  is 
to  be  discussed  by  the  United  States  with  that  Government  and  not 
with  Germany,  and  that  its  disputes  with  that  third  Government  are 
to  be  arranged  by  the  United  States  directly  with  that  Government, 
not  by,  with,  or  through  the  Imperial  German  Government.    Thus: 

The  Imperial  German  Government  will  readily  understand 
that  the  Government  of  the  United  States  cannot  discuss  the 
policy  of  the  Government  of  Great  Britain  with  regard  to  neu- 
tral trade  except  with  that  Government  itself,  and  that  it  must 
regard  the  conduct  of  other  belligerent  governments  as  irrele- 
vant to  any  discussion  with  the  Imperial  German  Government 
of  what  this  Government  regards  as  grave  and  unjustifiable 
violations  of  the  rights  of  American  citizens  by  German  naval 
commanders.  Illegal  and  inhuman  acts,  however  justifiable  they 
may  be  thought  to  be  against  an  enemy  who  is  believed  to  have 
acted  in  contravention  of  law  and  humanity,  are  manifestly 
indefensible  when  they  deprive  neutrals  of  their  acknowledged 
rights,  particularly  when  they  violate  the  right  to  life  itself. 
If  a  belligerent  cannot  retaliate  against  an  enemy  without  injur- 
ing the  lives  of  neutrals,  as  well  as  their  property,  humanity, 
as  well  as  justice  and  a  due  regard  for  the  dignity  of  neutral 
powers,  should  dictate  that  the  practice  be  discontinued.  If  per- 
sisted in  it  would  in  such  circumstances  constitute  an  unpardon- 
able offense  against  the  sovereignty  of  the  neutral  nation 
affected.' 

1  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  156. 


168        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

After  admitting  that  the  conditions  of  the  present  war  are  extraor- 
dinary and  that  changed  conditions  naturally  bring  new  methods 
into  being,  he  insists  that  those  methods  must  conform  to  principle, 
not  principle  to  those  methods.     Thus: 

The  rights  of  neutrals  in  time  of  war  are  based  upon  prin- 
ciple, not  upon  expediency,  and  the  principles  are  immutable. 
It  is  the  duty  and  obligation  of  belligerents  to  find  a  way  to 
adapt  the  new  circumstances  to  them.' 

In  regard  to  the  German  proposal  to  set  aside  a  certain  number 
of  ships  which  it  would  respect,  apparently  leaving  itself  free  to 
destroy  all  others.  Secretary  Lansing  repudiates  this  in  the  following 
measured  language: 

The  Government  of  the  United  States,  while  not  indifferent 
to  the  friendly  spirit  in  which  it  is  made,  cannot  accept  the 
suggestion  of  the  Imperial  German  Government  that  certain  ves- 
sels be  designated  and  agreed  upon  which  shall  be  free  on  the 
seas  now  illegally  proscribed.  The  very  agreement  would,  by 
implication,  subject  other  vessels  to  illegal  attack  and  would  be 
a  curtailment  and  therefore  an  abandonment  of  the  principles 
for  which  this  Government  contends  and  which  in  times  of  calmer 
counsels  every  nation  would  concede  as  of  course.- 

After  saying  that  the  Government  of  the  United  States  will  con- 
tinue to  contend  for  that  freedom,  from  whatever  quarter  violated., 
without  compromise  and  at  any  cost.  Secretary  Lansing  concludes 
his  note  with  the  very  solemn  warning,  always  portending  grave  con- 
sequences between  great  Nations,  that : 

Friendship  itself  prompts  it  to  say  to  the  Imperial  Govern- 
ment that  repetition  by  the  commanders  of  German  naval  vessels 
of  acts  in  contravention  of  those  rights  must  be  regarded  by  the 
Government  of  the  United  States,  when  they  affect  American 
citizens,  as  deliberately  unfriendly.^ 


Section  2.   The  ''Arabic" 

Before  taking  up  the  case  of  TJie  Sussex,  brief  mention  should  be 

made  of  The  Arabic,  a  steamer  of  the  White  Star  Line,  which  was 

torpedoed  without  warning  at  9  o'clock  on  the  morning  of  August  15, 

1915.    It  sank  in  eleven  minutes.    At  the  time  it  was  torpedoed  it 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  p.   156. 
2  Ibid.,  p.  157. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      169 

had  on  board  181  passengers,  among  them  25  Americans,  No  attempt 
was  made  by  the  submarine  to  put  passengers  or  crew  in  a  place  of 
safety,  and  44  lives  were  lost,  including  therein  three  Americans.  The 
Imperial  German  Government  apparently  appreciated  the  serious- 
ness of  this  incident,  as  in  a  note  of  September  1,  1915,  its  Ambas- 
sador to  the  United  States  informed  Secretary  Lansing  that  the 
following  passage  occurred  in  the  last  note  which  he  had  received 
from  his  Government  concerning  the  Lusitania  case : 

Liners  will  not  be  sunk  by  our  submarines  without  warning 
and  without  safety  of  the  lives  of  noncombatants,  provided  that 
the  liners  do  not  try  to  escape  or  offer  resistance/ 

Although,  in  a  note  of  September  4th,^  the  German  Ambassador  re- 
peated the  contention  of  his  Government  that  "American  citizens 
who  travel  on  such  vessels  do  so  on  their  own  responsibility  and 
incur  the  greatest  risk, ' '  the  representations  of  the  American  Govern- 
ment in  case  of  The  Arabic  caused  the  Imperial  German  Government 
to  state  to  its  Ambassador,  on  October  5,  1915,*  that  "the  orders 
issued  by  His  Majesty  the  Emperor  to  the  commanders  of  the  Ger- 
man submarines — of  which  I  notified  you  on  a  previous  occasion — 
have  been  made  so  stringent  that  the  recurrence  of  incidents  similar 
to  the  Arabic  case  is  considered  out  of  the  question."  The  Ambassa- 
dor, after  referring  to  the  belief  of  the  German  commander  that  the 
liner  intended  to  ram  the  submarine,  added  that  "the  attack  of 
the  submarine,  therefore,  was  undertaken  against  the  instructions 
issued  to  the  commander.  The  Imperial  Government  regrets  and 
disavows  this  act  and  has  notified  Commander  Schneider  accord- 
ingly." He  ended  the  note  with  an  offer,  made  on  behalf  of  his 
Government,  to  pay  an  indemnity  for  the  American  lives  lost  on 
The  Arabic.  On  October  6,  1915,  Secretary  Lansing,  in  an  acknowl- 
edgment to  the  German  Ambassador,  expressed  satisfaction  with  the 
foregoing  assurances  of  the  German  Government  and  stated  his  readi- 
ness to  negotiate  regarding  the  amount  of  the  indemnity. 

Section  3.   The  "Sussex" 

In  the  face  of  these  assurances  and  in  disregard  of  the  apparent 
accord  between  the  two  Governments,  the  British  passenger  steamer 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,    1916,   p.    166. 

2  Ibid.,  p.  167.  *Ibid.,  p.  172. 


170        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Stissex,  plying  between  an  English  and  a  French  port  and  having 
American  passengers  on  board,  was  torpedoed  on  March  24,  1916, 
without  the  formalities  of  visit  and  search,  without  warning,  and 
without  an  attempt  made  to  save  the  lives  of  passengers  and  crew  or 
to  put  them  in  a  place  of  safety.  The  question  involved  something 
more  than  the  destruction  of  a  passenger  vessel  and  the  loss  of 
American  lives.  It  involved  the  good  faith  of  the  Imperial  German 
Government  and  the  degree  to  which  the  United  States  could  rely 
upon  the  solemn  pledge  of  that  Government  given  after  negotiations 
extending  over  a  period  of  more  than  a  year.  The  facts  of  the  case, 
as  stated  by  Secretary  Lansing  in  his  cable  of  April  18,  1916,'  after 
careful  investigation  by  the  United  States,  were  as  follows: 

On  the  24th  of  March,  1916,  at  about  2:50  o'clock  in  the 
afternoon,  the  unarmed  steamer  Sussex,  with  325  or  more  pas- 
sengers on  board,  among  whom  were  a  number  of  American  citi- 
zens, was  torpedoed  while  crossing  from  Folkestone  to  Dieppe. 
The  Sussex  had  never  been  armed;  was  a  vessel  known  to  be 
habitually  used  only  for  the  conveyance  of  passengers  across  the 
English  Channel;  and  was  not  following  the  route  taken  by 
troop  ships  or  supply  ships.  About  eighty  of  her  passengers, 
noncombatants  of  all  ages  and  sexes,  including  citizens  of  the 
United  States,  were  killed  or  injured.^ 

Recognizing  the  peculiar  gravity  of  the  case  and  that  the  United 
States  must  stand  upon  the  issue  raised.  Secretary  Lansing  thus  stated 
the  care  with  which  the  United  States  had  ascertained  the  facts 
involved : 

A  careful,  detailed,  and  scrupulously  impartial  investigation 
by  naval  and  military  officers  of  the  United  States  has  con- 
clusively established  the  fact  that  The  Sussex  was  torpedoed  with- 
out warning  or  summons  to  surrender  and  that  the  torpedo  by 
which  she  was  struck  was  of  German  manufacture.^ 

After  observing  that  the  Government  of  the  United  States  had 
given  careful  consideration  to  the  Imperial  German  note  of  April  10, 
1916,  in  which  that  Government  denied  that  Tlie  Sussex  was  destroyed 
by  a  German  submarine,  introducing,  in  support  of  this  statement, 
"a  sketch  of  the  vessel  attacked"  made  by  the  German  commander, 
and  in  which  the  Imperial  German  Government  proposed  that  the 
facts  be  ascertained  by  a  mixed  committee  of  investigation  pursuant 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  186-190.  2  Ibid.,  p.   187. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      171 

to  the  third  title  of  The  Hague  Convention  of  October  18,  1907, 
for  the  pacific  settlement  of  international  disputes,  Secretary  Lansing 
added  that  ''the  Imperial  Government  has  failed  to  appreciate  the 
gravity  of  the  situation  which  has  resulted,  not  alone  from  the 
attack  on  TJie  Sussex,  but  from  the  whole  method  and  character  of 
submarine  warfare  as  disclosed  by  the  unrestrained  practice  of  the 
commanders  of  German  undersea  craft  during  the  past  twelvemonth 
and  more  in  the  indiscriminate  destruction  of  merchant  vessels  of 
all  sorts,  nationalities,  and  destinations." 

Secretary  Lansing  was  willing  to  concede  that,  if  the  case  were 
an  isolated  one,  although  "so  tragical  as  to  make  it  stand  forth  as 
one  of  the  most  terrible  examples  of  the  inhumanity  of  submarine 
warfare  as  the  commanders  of  German  vessels  are  conducting  it," 
the  "ends  of  justice  might  be  satisfied  by  imposing  upon  him  [the 
commander]  an  adequate  punishment,  coupled  with  a  formal  dis- 
avowal of  the  act  and  payment  of  a  suitable  indemnity  by  the 
Imperial  Government."  But,  under  present  circumstances,  the 
destruction  of  The  Sussex  could  only  be  looked  upon  as  one  of  a 
series  and  as  evidence  "of  the  deliberate  method  and  spirit  of  indis- 
criminate destruction  of  merchant  vessels  of  all  sorts,  nationalities, 
and  destinations."  Secretary  Lansing  referred  to  the  attitude  of 
the  United  States  upon  the  announcement  of  the  submarine  cam- 
paign in  1915,  when  "it  took  the  position  that  such  a  policy  could 
not  be  pursued  without  constant  gross  and  palpable  violations  of 
the  accepted  law  of  nations,  particularly  if  submarine  craft  were 
to  be  employed  as  its  instruments,  inasmuch  as  the  rules  prescribed 
by  that  law,  rules  founded  on  the  principles  of  humanity  and  estab- 
lished for  the  protection  of  the  lives  of  noncombatants  at  sea,  could 
not  in  the  nature  of  the  ease  be  observed  by  such  vessels." 

Notwithstanding  the  requirements  of  the  law  of  Nations  in  these 
matters,  based  upon  the  principles  of  humanity  and  having  "the 
express  assent  of  all  civilized  nations,"  the  Imperial  Government, 
to  quote  Secretary  Lansing's  exact  words,  "persisted  in  carrying  out 
the  policy  announced,  expressing  the  hope  that  the  dangers  involved, 
at  any  rate  to  neutral  vessels,  would  be  reduced  to  a  minimum  by 
the  instructions  which  it  had  issued  to  the  commanders  of  its  sub- 
marines, and  assuring  the  Government  of  the  United  States  that 
it  would  take  every  possible  precaution  both  to  respect  the  rights 
of  neutrals  and  to  safeguard  the  lives  of  noncombatants."  But,  in 
spite  of  these  promises  and  the  protest  of  the  United  States,  the  sub- 
marine warfare  continued,  suggesting  that  the  "Imperial  Govern- 


172        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

ment  has  found  it  impracticable  to  put  any  such  restraints  upon 
them  as  it  had  hoped  and  promised  to  put." 

After  calling  attention  to  the  fact  that  in  February,  1916,  the 
German  Government  declared  that  it  would  treat  armed  merchantmen 
as  vessels  of  war  and  that  by  so  doing  it  pledged  itself  by  implica- 
tion "to  give  warning  to  vessels  which  were  not  armed  and  to  accord 
security  of  life  to  their  passengers  and  crews,"  and,  after  stating  that 
commanders  of  German  submarines  "had  recklessly  ignored"  even 
this  limitation,  Secretary  Lansing  used  the  following  spirited  but 
just  language: 

Vessels  of  neutral  ownership,  even  vessels  of  neutral  owner- 
ship bound  from  neutral  port  to  neutral  port,  have  been  destroyed 
along  with  vessels  of  belligerent  ownership  in  constantly  in- 
creasing numbers.  Sometimes  the  merchantmen  attacked  have 
been  warned  and  summoned  to  surrender  before  being  jBred  on 
or  torpedoed ;  sometimes  their  passengers  and  crews  have  been 
vouchsafed  the  poor  security  of  being  allowed  to  take  to  the- 
ship's  boats  before  the  ship  was  sent  to  the  bottom.  But  again 
and  again  no  warning  has  been  given,  no  escape  even  to  the  ship 's 
boats  allowed  to  those  on  board.  Great  liners  like  The  Lusitania 
and  Arabic  and  mere  passenger  boats  like  The  Sussex  have 
been  attacked  without  a  moment's  warning,  often  before  they 
have  even  become  aware  that  they  were  in  the  presence  of 
an  armed  ship  of  the  enemy,  and  the  lives  of  noncombatants, 
passengers,  and  crew  have  been  destroyed  wholesale  and  in  a 
manner  which  the  Government  of  the  United  States  cannot  but 
regard  as  wanton  and  without  the  slightest  color  of  justification. 
No  limit  of  any  kind  has  in  fact  been  set  to  their  indiscriminate 
pursuit  and  destruction  of  merchantmen  of  all  kinds  and  nation- 
alities within  the  waters  which  the  Imperial  Government  has 
chosen  to  designate  as  lying  within  the  seat  of  war.  The  roll  of 
Americans  who  have  lost  their  lives  upon  ships  thus  attacked 
and  destroyed  has  grown  month  by  month  until  the  ominous  toll 
has  mounted  into  the  hundreds.' 

After  mentioning  that  the  American  Government  has  been  very 
patient,  that  it  has  allowed  itself  "to  be  guided  by  sentiments  of  very 
genuine  friendship  for  the  people  and  Government  of  Germany," 
and  that  "it  has  made  every  allowance  for  unprecedented  condi- 
tions and  has  been  willing  to  wait  until  the  facts  became  unmis- 
takable and  were  susceptible  of  only  one  interpretation,"  Secretary 
Lansing  asserted,  on  behalf  of  the  United  States,  that  "it  now  owes 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  189-190. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      173 

it  to  a  just  regard  for  its  own  rights  to  say  to  the  Imperial  Govern- 
ment that  that  time  has  come.  It  has  become  painfully  evident  to 
it  that  the  position  which  it  took  at  the  very  outset  is  inevitable, 
namely,  the  use  of  submarines  for  the  destruction  of  an  enemy's 
commerce,  is,  of  necessity,  because  of  the  very  character  of  the  vessels 
employed  and  the  very  methods  of  attack  which  their  employment  of 
course  involves,  utterly  incompatible  with  the  principles  of  humanity, 
the  long-established  and  incontrovertible  rights  of  neutrals,  and  the 
sacred  immunities  of  noncombatants."  ^  And  Secretary  Lansing, 
still  speaking  for  the  United  States  "in  behalf  of  humanity  and  the 
rights  of  neutral  nations,"  solemnly  stated  that  "unless  the  Imperial 
Government  should  now  immediately  declare  and  eifect  an  abandon- 
ment of  its  present  methods  of  submarine  warfare  against  passenger 
and  freight-carrying  vessels,  the  Government  of  the  United  States 
can  have  no  choice  but  to  sever  diplomatic  relations  with  the  German 
Empire  altogether. "' - 

On  May  4,  1916,^  the  Imperial  German  Secretary  of  State  for 
Foreign  Affairs  handed  the  American  Ambassador  a  formal  reply 
and  assurance,  and,  recognizing  the  gravity  of  the  case  and  the  possi- 
bility of  misunderstanding  of  its  terms  and  a  misconception  of  the 
purposes  of  the  German  Government,  the  text  of  the  reply  was  in 
English  as  well  as  German. 

At  the  very  outset  of  his  note  the  Imperial  Secretary  emphati- 
cally repudiates  Secretary  Lansing's  assertion  "that  this  incident  is 
to  be  considered  as  one  instance  for  the  deliberate  method  of  indis- 
criminate destruction  of  vessels  of  all  sorts,  nationalities,  and  des- 
tinations by  German  submarine  commanders."  He  stated  again  that 
commanders  of  German  submarines  had  been  ordered  "to  conduct 
submarine  warfare  in  accordance  with  the  general  principles  of  visit 
and  search  and  destruction  of  merchant  vessels  as  recognized  by 
international  law."  He  admitted,  however,  that  the  Imperial  Gov- 
ernment had  made  an  exception,  which  he  was  bold  enough  to  call 
the  "sole  exception,"  in  the  case  of  "enemy  trade  carried  on  enemy 
freight  ships  that  are  encountered  in  the  war  zone  surrounding 
Great  Britain,"  and  that  "with  regard  to  these  no  assurances 
have  ever  been  given  to  the  Government  of  the  United  States." 
He  stated  that  "the  German  Government  cannot  admit  any  doubt 
that  these  orders  have  been  given  and  are  executed  in  good  faith," 
although  he   conceded  that  "errors  have  actually  occurred";  and 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,   p.    190. 
2  Ibid.,  pp.  195-199. 


174        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

he  asserted  once  again,  and  in  what  would  seem  to  be  unmistakable 
terms,  as  the  German  Government  has  repeatedly  declared,  that 
"it  cannot  dispense  with  the  use  of  the  submarine  weapon  in  the 
conduct  of  warfare  against  enemy  trade." 

A  considerable  portion  of  the  note  is  taken  up  with  the  denuncia- 
tion of  Great  Britain,  which,  according  to  the  Imperial  German 
Secretary,  "ignoring  all  the  accepted  rules  of  international  law, 
has  extended  this  terrible  war  to  the  lives  and  property  of  non- 
combatants,  having  no  regard  whatever  for  the  interests  and  rights 
of  the  neutrals  and  noncombatants  that  through  this  method  of  war- 
fare have  been  severely  injured,"  and  that  "in  self-defense  against 
the  illegal  conduct  of  British  warfare,  while  fighting  a  bitter  strug- 
gle for  her  national  existence,  Germany  had  to  resort  to  the  hard 
but  effective  weapon  of  submarine  warfare. ' '  ^ 

Again,  the  claim  is  advanced  that  Germany  is  resolved  "to  use 
the  submarine  weapon  in  strict  conformity  with  the  rules  of  inter- 
national law  as  recognized  before  the  outbreak  of  the  war,  if  Great 
Britain  were  likewise  ready  to  adapt  her  conduct  of  warfare  to  these 
rules,"  thus  again  admitting  the  unlawful  conduct  of  the  submarine 
and  again  justifying  its  use  by  what  it  denounced  as  the  unlawful  con- 
duct of  Great  Britain.  After  mentioning  that  the  United  States  has 
failed  in  its  attempts  to  cause  Great  Britain  to  adhere  to  international 
law  and  stating  that  "the  German  people  knows  that  the  Govern- 
ment of  the  United  States  has  the  power  to  confine  this  war  to  the 
armed  forces  of  the  belligerent  countries  in  the  interest  of  humanity, ' ' 
the  Imperial  Secretary  insists  in  language  which  may  be  quoted,  but 
upon  which  it  is  very  difficult  to  comment,  that  "the  German  people 
is  under  the  impression  that  the  Government  of  the  United  States, 
while  demanding  that  Germany,  struggling  for  her  existence,  shall 
restrain  the  use  of  an  effective  weapon,  and  while  making  the  com- 
pliance with  these  demands  a  condition  for  the  maintenance  of  rela- 
tions with  Germany,  confines  itself  to  protests  against  the  illegal 
methods  adopted  by  Germany's  enemies."  However,  the  German 
Government,  wishing  to  preserve  peace  between  the  two  nations  and 
"to  confine  the  operations  of  war  for  the  rest  of  its  duration  to 
the  fighting  forces  of  the  belligerents"  and  to  insure  "the  freedom 
of  the  seas,"  notifies  the  Government  of  the  United  States  that  the 
German  naval  forces  have  received  the  following  orders :  "In  accord- 
ance with  the  general  principles  of  visit  and  search  and  destruction 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.   197. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      175 

of  merchant  vessels  recognized  by  international  law,  such  vessels, 
both  within  and  without  the  area  declared  as  naval  war  zone,  shall 
not  be  sunk  without  warning  and  without  saving  human  lives,  unless 
these  ships  attempt  to  escape  or  offer  resistance. ' '  ^ 

This  the  Imperial  Secretary  regarded  as  a  concession,  and  appar- 
ently he  wished  it  to  be  considered  as  such,  because,  in  the  paragraph 
of  his  note  immediately  following  it,  he  says; 

But  neutrals  cannot  expect  that  Germany,  forced  to  fight 
for  her  existence,  shall,  for  the  sake  of  neutral  interest,  restrict 
the  use  of  an  effective  weapon  if  her  enemy  is  permitted  to  con- 
tinue to  apply  at  will  methods  of  warfare  violating  the  rules  of 
international  law.  Such  a  demand  would  be  incompatible  with 
the  character  of  neutrality,  and  the  German  Government  is  con- 
vinced that  the  Government  of  the  United  States  does  not  think 
of  making  such  a  demand,  knowing  that  the  Government  of  the 
United  States  has  repeatedly  declared  that  it  is  determined  to 
restore  the  principle  of  the  freedom  of  the  seas,  from  whatever 
quarter  it  is  violated." 

Finally,  the  German  Secretary  stated  that  "should  the  steps 
taken  by  the  Government  of  the  United  States  not  attain  the  object 
it  desires — to  have  the  laws  of  humanity  followed  by  all  belligerent 
nations, — the  German  Government  would  then  be  facing  a  new  situ- 
ation in  which  it  must  reserve  to  itself  complete  liberty  of  decision. ' '  * 

Instead  of  commenting  upon  the  contentions  of  the  German  Gov- 
ernment contained  in  this  note,  it  will  perhaps  be  best  to  quote, 
likewise  without  comment.  Secretary  Lansing's  note  in  reply,  dated 
May  8,  1916,*  indicating  the  agreement  which  was  supposed  to  have 
been  reached  between  the  two  Governments: 

The  note  of  the  Imperial  German  Government  under  date 
of  May  4,  1916,  has  received  careful  consideration  by  the  Gov- 
ernment of  the  United  States.  It  is  especially  noted,  as  indi- 
cating the  purpose  of  the  Imperial  Government  as  to  the  future, 
that  it  "is  prepared  to  do  its  utmost  to  confine  the  operations 
of  the  war  for  the  rest  of  its  duration  to  the  fighting  forces  of 
the  belligerents,"  and  that  it  is  determined  to  impose  upon  all 
its  commanders  at  sea  the  limitations  of  the  recognized  rules  of 
international  law  upon  which  the  Government  of  the  United 
States  has  insisted.  Throughout  the  months  which  have  elapsed 
since  the  Imperial  Government  announced,  on  February  4,  1915, 
its  submarine  policy,  now  happily  abandoned,  the  Government  of 
the  United  States  has  been  constantly  guided  and  restrained  by 

^  Ofl5cial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.    198. 

2  Ibid.,  pp.  198-199.  •  Ibid.,  p.  199.  *  Ibid.,  pp.  199-200. 


176        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

motives  of  friendship  in  its  patient  efforts  to  bring  to  an  amicable 
settlement  the  critical  questions  arising  from  that  policy.  Accept- 
ing the  Imperial  Government's  declaration  of  its  abandonment 
of  the  policy  which  has  so  seriously  menaced  the  good  relations 
between  the  two  countries,  the  Government  of  the  United  States 
will  rely  upon  a  scrupulous  execution  henceforth  of  the  now 
altered  policy  of  the  Imperial  Government,  such  as  will  remove 
the  principal  danger  to  an  interruption  of  the  good  relations 
existing  between  the  United  States  and  Germany. 

The  Government  of  the  United  States  feels  it  necessary  to 
state  that  it  takes  it  for  granted  that  the  Imperial  German 
Government  does  not  intend  to  imply  that  the  maintenance  of 
its  newly  announced  policy  is  in  any  way  contingent  upon  the 
course  or  result  of  diplomatic  negotiations  between  the  Govern- 
ment of  the  United  States  and  any  other  belligerent  Government, 
notwithstanding  the  fact  that  certain  passages  in  the  Imperial 
Government's  note  of  the  4th  instant  might  appear  to  be  sus- 
ceptible of  that  construction.  In  order,  however,  to  avoid  any 
possible  misunderstanding,  the  Government  of  the  United  States 
notifies  the  Imperial  Government  that  it  cannot  for  a  moment 
entertain,  much  less  discuss,  a  suggestion  that  respect  by  German 
naval  authorities  for  the  rights  of  citizens  of  the  United  States 
upon  the  high  seas  should  in  any  way  or  in  the  slightest  degree 
be  made  contingent  upon  the  conduct  of  any  other  Government 
affecting  the  rights  of  neutrals  and  noncombatants.  Responsi- 
bility in  such  matters  is  single,  not  joint;  absolute,  not  relative.^ 

To  this  note  and  to  Secretary  Lansing's  statement  that  the  United 
States  did  not  accept  the  concession  of  the  German  Government  con- 
ditioned upon  the  success  of  any  negotiations  with  Great  Britain, 
no  reply  has  ever  been  received.^ 

^  OflBcial  text,  A7nerican  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  199-200. 

2  See  statement  to  this  effect  in  Secretary  Lansing's  note  of  February  3, 
1917,  to  the  German  Ambassador,  handing  him  his  passports.  M88.  Department 
of  State. 


CHAPTER   X 
REPRISALS,   RETALIATION,   NECESSITY 

Section  1.   Reprisals 

Even  a  casual  consideration  of  the  correspondence  between  the 
Imperial  German  Government  and  the  United  States  and  the  British 
Government  and  the  United  States  will  have  sho^Ti  each  belligerent 
justifying  a  certain  line  of  conduct  because  of  an  illegal  act  of  the 
enemy  which  must  be  met  and  overcome.  If  the  enemy  committed 
the  act  as  alleged,  then  necessity,  vital  interests,  or  self-defense  re- 
quired the  belligerent — Germany,  Great  Britain,  or  France — to  resort 
to  appropriate  measures  in  order  to  counteract  it. 

Let  us  take,  by  way  of  illustration,  the  matter  of  mines.  Germany 
scattered  mines,  according  to  its  notice  to  neutrals,  on  August  7,  1914. 
Great  Britain  alleged  that  Germany  was  using  mines  improperly ;  this 
Germany  denied.  Great  Britain  alleged  that  Germany  was  scattering 
mines  indiscriminately  and  improperly,  using  neutral  vessels  for  this 
purpose ;  this  Germany  denied.  Great  Britain  intimated  that  if  Ger- 
many continued  its  unlawful  use  of  mines,  Great  Britain  might  be 
obliged  to  resort  to  like  measures,  and  in  due  course  of  time  mines 
were  scattered  by  Great  Britain  in  the  North  Sea,  which  was  declared 
a  military  area.  Germany  denounced  this  action  on  the  part  of  Great 
Britain  and  declared  the  British  Isles  to  be  a  war  zone,  with  the 
result  that,  each  alleging  the  misconduct  of  the  other  as  justification 
for  its  various  measures,  the  neutral  was  ground  as  it  were  between 
the  upper  and  the  nether  millstone. 

After  giving  the  reasons  for  a  law  of  the  sea  and  stating  the 
modest  results  accomplished  in  the  direction  of  law,  the  President 
said  in  his  address  of  April  2,  1917,  to  the  Congress: 

This  minimum  of  right  the  German  Government  has  swept 
aside  under  the  plea  of  retaliation  and  necessity  and  because  it 
had  no  weapons  which  it  could  use  at  sea  except  these  which 
it  is  impossible  to  employ  as  it  is  employing  them  without  throw- 
ing to  the  winds  all  scruples  of  humanity  or  of  respect  for  the 
understandings  that  were  supposed  to  underlie  the  intercourse  of 

177 


178        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  world.  I  am  not  now  thinking  of  the  loss  of  property  involved, 
immense  and  serious  as  that  is,  but  only  of  the  wanton  and  whole- 
sale destruction  of  the  lives  of  noncombatants,  men,  women,  and 
children,  engaged  in  pursuits  which  have  always,  even  in  the 
darkest  periods  of  modern  history,  been  deemed  innocent  and 
legitimate.  Property  can  be  paid  for;  the  lives  of  peaceful  and 
innocent  people  cannot  be.  The  present  German  submarine  war- 
fare against  commerce  is  a  warfare  against  mankind.' 

In  the  matter  of  reprisals,  akin  to  if  not  identical  with  retaliation, 
perhaps  the  clearest  statement  to  be  found  in  the  correspondence 
between  the  United  States  and  the  Imperial  German  Government  is 
contained  in  a  memorandum  of  the  German  Embassy,  handed  to 
Secretary  Lansing  on  March  8,  1916,  which  enumerates  in  some 
detail  the  illegal  acts  of  its  arch  enemy,  Great  Britain,  which 
"compelled"  the  Imperial  Government  to  resort  to  reprisals.  After 
performing  this  not  uncongenial  task,  the  memorandum  states  that: 

Protests  from  neutrals  were  of  no  avail,  and  from  that  time 
on  the  freedom  of  neutral  commerce  with  Germany  was  prac- 
tically destroyed.  Under  these  circumstances  Germany  was  com- 
pelled to  resort,  in  February,  1915,  to  reprisals  in  order  to  fight 
her  opponents'  measures,  which  were  absolutely  contrary  to 
international  law.- 

Admitting  that  the  law  and  the  practice  of  nations  allowed  re- 
prisals, and  that  Germany  was  justified  in  using  the  submarine  against 
its  enemy  if  its  actions  were  confined  to  the  enemy  and  did  not  injure 
or  destroy  indiscriminately  the  neutral,  the  resort  to  reprisals  is  an 
extreme  right,  depending  as  it  does  upon  the  will  of  one  nation  acting 
in  passion  with  the  danger  ever  present  that  the  will  of  all,  as 
expressed  in  the  law  of  nations,  will  be  overridden.  But  there  are 
bounds  to  reprisals,  which,  if  not  illegal,  are  extra  legal,  and  the 
bounds  are  thus  admirably  stated  in  conformity  with  the  law  and 
practice  of  nations  by  the  distinguished  German  jurist,  Ferdinand 
Perels,  for  many  years  adviser  to  the  German  Admiralty: 

From  time  immemorial,  even  down  to  the  modern  era,  the 
manner  of  waging  war,  has,  in  all  respects,  been  barbarous. 
Every  means  serviceable  for  realizing  the  object  of  the  war, 
was  looked  upon  as  proper.  The  old  maxim,  "etiayn  Jiasti  fides 
servanda,"  was  not  always  observed.  Even  although  discipline, 
as  a  rule,  was  exercised  in  an  extraordinarily  rigia  way,  still,  in 

'  H.  R.  doc.  No.  1,  65th  Cong.,  1st  sess. 

2  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  179. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      179 

the  land  of  the  enemy,  and  as  so  frequently  happened,  during 
the  Thirty  Years'  War,  for  instance,  murder,  incendiarism, 
pillage,  rape,  and  atrocities  of  all  sorts  were  the  order  of  the 
day  even  in  one's  own  land. 

Ever  since  the  law  of  nations  has  regarded  war  as  a  legal 
status,  attempts  have  been  made  to  settle  the  bounds  commanded 
by  humanity  and  by  honor,  to  limit,  thereby,  the  horrors  of 
war  to  what  is  strictly  necessary,  and  to  permit  a  violation 
thereof  only  in  case  of  reprisals.  But,  even  measures  of  this 
sort,  made  necessary  for  the  realization  and  security  of  the 
objects  of  war,  must  conform  to  the  customs  of  war  as  they  have 
been  formed  during  the  latter  decades;  and  it  is  only  upon 
the  basis  of  such  restriction  that  the  military  commander  is 
authorized  to  resort  to  the  use  of  those  means,  imposed  upon 
him  by  his  duty,  to  execute  his  task  and  his  orders  as  quickly 
and  as  completely  as  possible,  and  at  the  same  time  to  provide 
for  the  security  and  for  the  maintenance  of  his  troops. 

In  regard  to  the  laws  and  customs  of  land  warfare,  the  Con- 
vention of  July  29,  1899,  adopted  by  The  Hague  Peace  Confer- 
ence contains,  in  so  far  as  the  special  conditions  of  maritime 
warfare  do  not  permit  of  departures  therefrom,  a  number  of 
provisions  which  are  to  be  equally  observed  in  hostilities 
between  maritime  powers,  because  they  represent  the  general 
rules  of  warfare  as  developed  from  the  concept  of  the  modern 
law  of  nations,  and  also  because  it  is  not  always  possible,  in  all 
hostile  situations,  strictly  to  distinguish  between  warfare  on 
land  and  warfare  on  sea. 

Three  declarations  have  resulted  from  the  said  convention, 
and  concern : 

1.  Inhibition  of  throwdng  bombs  and  explosives  from  air- 
ships or  in  new  ways  similar  thereto; 

2.  Inhibition  of  the  use  of  bombs  containing  asphyxiating  or 
poisonous  gases; 

3.  Inhibition  of  the  use  of  projectiles  which  will  readily 
flatten  or  expand  in  the  human  body. 

Opinions  differ  as  regards  the  admissibility  of  the  exercise 
of  reprisals.  Even  although  disregard  of  the  customs  of  war 
by  one  party  may  justify  the  opponent  in  violating  the  accepted 
usages  of  war,  nay,  under  circumstances,  in  resorting  to  extraor- 
dinary measures,  still,  the  fundamental  principles  of  humanity 
should  be  observed  at  all  times.  Satisfaction  and  vengeance  to 
be  had  only  by  harsh  measures  will  not  always  be  renounced. 
But,  even  in  such  cases,  barbarity  and  unrestrained  arbitrariness 
passing  the  bounds  of  necessity  must  be  condemned.' 

Just  as  in  the  first  edition  of  his  work  published  in  1881,  Pro- 
fessor Perels  began  the  last  paragraph  by  quoting,  in  justification 

'  Perels,  Das  Internationale  Offentliche  Seerecht  der  Gegenwart,  2d  edition, 
revised,   1903,  pp.   179-180. 


180        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  his  views,  Article  27  of  the  Instructions  to  A7nerican  Armies  in 
the  Field:  "A  reckless  enemy  often  leaves  to  his  opponent  no  other 
means  of  securing  himself  against  the  repetition  of  barbarous  out- 
rage," so  he  closes  the  corresponding  paragraph  of  the  edition  of 
1903  with  the  quotation,  in  justification  of  his  views,  of  Article  8 
of  Naval  War  Code  of  the  United  States:  "In  the  event  of  an  enemy 
failing  to  observe  the  laws  and  usages  of  war,  if  the  offender  is  beyond 
reach,  resort  may  be  had  to  reprisals,  if  such  action  should  be  con- 
sidered a  necessity,  but  due  regard  must  always  be  had  to  the  duties 
of  humanity. ' ' ' 

And  also  in  the  first  edition  of  his  work  Professor  Perels  invoked 
the  authority  of  Bluntschli,  who,  as  is  well  known,  relied  upon  the 
distinguished  American  publicist  of  German  origin,  Francis  Lieber, 
the  author  of  the  American  Instructions  which  Perels  had  quoted. 
The  passage  from  Bluntschli  to  which  Perels  referred  reads  as  follows 
in  English: 

In  ease  the  enemy  disregards  the  bounds  of  the  accepted 
custom  of  war  or  resorts  to  agencies  of  war  which  are  against 
international  law,  reprisals  may  then  be  resorted  to.  Still,  in 
the  practice  of  reprisals,  the  fundamental  laws  of  humanity  must 
not  be  violated. 

Upon  this  article  Bluntschli  thus  comments: 

Cf.  §  499  above,  and  Articles  of  War  of  the  United  States, 
27,  28,  The  barbarity  of  the  enemy  does  not  justify  barbarity 
on  the  part  of  the  opponent.  When  savages  torture  enemy  pris- 
oners to  death,  civilized  troops  may  at  most,  on  the  ground  of 
reprisals,  kill  the  enemy  savages,  but  not  torture  them.  The 
enemy  passion  of  hatred  and  of  revenge  attempts  to  palliate  its 
misdeeds  by  appealing  to  the  right  of  reprisals.  The  elaboration 
of  a  more  humane  law  of  nations  demands,  therefore,  a  restric- 
tion of  this  law  of  necessity  to  the  really  necessary.  It  is  more 
honorable,  to  resort  to  this  law  as  little  as  possible.- 

Other  publicists  might  be  cited,  but  President  Wilson  can  well 
afford  to  rest  his  case  upon  the  authority  of  Perels  and  of  Bluntschli, 

^  Perels,  Das  Internationale  Offentlicke  8eerecht  der  Gegenwart,  2d  edition, 
revised,   1903,  pp.    179-180. 

2  Bluntschli,  Das  Moderne  Volkerrecht  der  Civilisirten  Staaten  als  Rechtsbuch 
dargestellt,  3d  edition,  1878,  aec.  567,  p.  319. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      181 

Section  2.   Retaliation 

In  the  matter  of  retaliation,  it  may  be  said  that  the  correspond- 
ence between  the  United  States  and  the  belligerents  fairly  teems 
with  it. 

In  retaliation  of  the  regulations  adopted  by  England  and 
her  allies,  deviating  from  the  London  declaration  of  maritime 
law  of  February  26,  1909,  I  [the  Kaiser  himself  is  speaking] 
approve  of  the  following  amendments  of  the  prize  ordinance  of 
September  30,  1909/ 

It  is  impossible  [said  the  British  Secretary  of  State  for 
Foreign  Affairs]  for  one  belligerent  to  depart  from  rules  and 
precedents  and  for  the  other  to  remain  bound  by  them.^ 

And  again,  after  saying  that  *'the  German  declaration  [of  blockade 
of  the  British  Isles  by  the  submarines]  substitutes  indiscriminate 
destruction  for  regulated  capture,"  the  British  Ambassador  states 
on  behalf  of  his  country  and  indeed  of  the  Allies: 

Her  opponents  are  therefore  driven  to  frame  retaliatory 
measures  in  order  in  their  turn  to  prevent  commodities  of  any 
kind  from  reaching  or  leaving  Germany.* 

But  while  the  belligerents  are,  as  it  were,  tarred  with  the  same 
stick,  the  Allies  recognize  the  limitation  of  retaliation  and  confine 
it  within  its  legitimate  sphere,  declaring  (and  although  international 
law  has  suffered  somewhat  in  the  process,  they  have  lived  up  to  their 
declaration)  that: 

These  measures  will,  however,  be  enforced  by  the  British  and 
French  Governments  without  risk  to  neutral  ships  or  to  neutral 
or  noneombatant  life  and  in  strict  observance  of  the  dictates  of 
humanity.' 

Without  indulging  in  further  quotations  from  the  belligerents 
invoking  the  right  to  commit  reprisals  and  to  take  retaliatory  meas- 
ures, it  is  advisable  to  state  the  attitude  of  the  United  States  towards 
the  claims  and  actions  of  the  belligerents,  which  is,  it  is  believed,  in 
this  phase  of  the  subject  the  attitude  of  international  law. 

In  the  first  place,  Secretary  Bryan  makes  clear  the  extent  to  which 

*  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  43. 

2  Ibid.,  p.  83.  »  Ibid.,  p.  102. 


182        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  United  States  would  be  disposed  to  consider  retaliation  legitimate. 
Thus: 

The  Government  of  the  United  States  notes  that  in  the 
Order  in  Council  His  Majesty's  Government  give  as  their  reason 
for  entering  upon  a  course  of  action,  which  they  are  aware  is 
without  precedent  in  modern  warfare,  the  necessity  they  con- 
ceive themselves  to  have  been  placed  under  to  retaliate  upon  their 
enemies  for  measures  of  a  similar  nature  which  the  latter  have 
announced  it  their  intention  to  adopt  and  which  they  have  to 
some  extent  adopted;  but  the  Government  of  the  United  States, 
recalling  the  principles  upon  which  His  Majesty's  Government 
have  hitherto  been  scrupulous  to  act,  interprets  this  as  merely 
a  reason  for  certain  extraordinary  activities  on  the  part  of  His 
Majesty's  naval  forces  and  not  as  an  excuse  for  or  prelude  to 
any  unlawful  action.  If  the  course  pursued  by  the  present 
enemies  of  Great  Britain  should  prove  to  be  in  fact  tainted  by 
illegality  and  disregard  of  the  principles  of  war  sanctioned  by 
enlightened  nations,  it  cannot  be  supposed,  and  this  Govern- 
ment does  not  for  a  moment  suppose,  that  His  Majesty's  Govern- 
ment would  wish  the  same  taint  to  attach  to  their  own  actions 
or  would  cite  such  illegal  acts  as  in  any  sense  or  degree  a  justi- 
fication for  similar  practices  on  their  part  in  so  far  as  they  affect 
neutral  rights.' 

That  is  to  say,  extraordinary  activity  was  to  be  expected  and 
the  inconvenience  occasioned  by  it  endured,  provided  it  was  not 
"an  excuse  for  or  prelude  to  any  unlawful  action." 

"When,  however,  the  narrow  and  somewhat  flexible  line  sepa- 
rating right  from  wrong  was  crossed,  the  United  States  did  not 
merely  explain.     It  protested.     Thus: 

The  Government  of  the  United  States  has  been  apprised  that 
the  Imperial  German  Government  considered  themselves  to  be 
obliged  by  the  extraordinary  circumstances  of  the  present  war 
and  the  measures  adopted  by  their  adversaries  in  seeking  to  cut 
Germany  off  from  all  commerce,  to  adopt  methods  of  retaliation 
which  go  much  beyond  the  ordinary  methods  of  warfare  at  sea, 
in  the  proclamation  of  a  war  zone  from  which  they  have  warned 
neutral  ships  to  keep  away.  This  Government  has  already  taken 
occasion  to  inform  the  Imperial  German  Government  that  it 
cannot  admit  the  adoption  of  such  measures  or  such  a  warning 
of  danger  to  operate  as  in  any  degree  an  abbreviation  of  the 
rights  of  American  shipmasters  or  of  American  citizens  bound 
on  lawful  errands  as  passengers  on  merchant  ships  of  belligerent 

^  Secretary  of  State  to  American  Ambassador  to  Germany,  May  13,  1915; 
official  text,  American  Journal  of  International  Law,  Special  Supplement,  July, 
1915,  p.    119-120. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      183 

nationality;  and  that  it  must  hold  the  Imperial  German  Gov- 
ernment to  a  strict  accountability  for  any  infringement  of  those 
rights,  intentional  or  incidental.  It  does  not  understand  the 
Imperial  German  Government  to  question  those  rights.  It 
assumes,  on  the  contrary,  that  the  Imperial  Government  accept, 
as  of  course,  the  rule  that  the  lives  of  noncombatants,  whether 
they  be  of  neutral  citizenship  or  citizens  of  one  of  the  nations 
at  war,  cannot  lawfully  or  rightfully  be  put  in  jeopardy  by  the 
capture  or  destruction  of  an  unarmed  merchantman,  and  recog- 
nize also,  as  all  other  nations  do,  the  obligation  to  take  the  usual 
precaution  of  "^dsit  and  search  to  ascertain  whether  a  suspected 
merchantman  is  in  fact  of  belligerent  nationality  or  is  in  fact 
carrying  contraband  of  war  under  a  neutral  flag.' 

Finally,  Secretary  Lansing,  speaking  for  his  Government,  and, 
it  is  believed,  for  all  governments,  whether  neutral  or  belligerent, 
thus  laid  down  the  line  of  conduct  which  alone  can  be  tolerated  if 
neutrals  are  not  to  be  made  parties  to  the  war  or  to  suffer  without 
protest  its  consequences.    Thus: 

Illegal  and  inhuman  acts,  however  justifiable  they  may  be 
thought  to  be  against  an  enemy  who  is  believed  to  have  acted 
in  contravention  of  law  and  humanity,  are  manifestly  inde- 
fensible when  they  deprive  neutrals  of  their  acknowledged  rights, 
particularly  when  they  violate  the  right  to  life  itself.  If  a  bel- 
ligerent cannot  retaliate  against  an  enemy  without  injuring  the 
lives  of  neutrals,  as  well  as  their  property,  humanity,  as  well  as 
justice  and  a  due  regard  for  the  dignity  of  neutral  powers, 
should  dictate  that  the  practice  be  discontinued.  If  persisted 
in  it  would  in  such  circumstances  constitute  an  unpardonable 
offense  against  the  sovereignty  of  the  neutral  nation  affected.'' 
******* 

The  United  States,  therefore,  cannot  submit  to  the  curtail- 
ment of  its  neutral  rights  by  these  measures,  which  are  admit- 
tedly retaliatory,   and  therefore  illegal,   in   conception  and  in 
nature,  and  intended  to  punish  the  enemies  of  Great  Britain 
for  alleged  illegalities  on  their  part.     The  United  States  might 
not  be  in  a  position  to  object  to  them,  if  its  interests  and  the 
interests  of  all  neutrals  were  unaffected  by  them,  but,   being 
affected,  it  cannot  with  complacence  suffer  further  subordina- 
tion of  its  rights  and  interests  to  the  plea  that  the  exceptional 
geographic  positions  of  the  enemies  of  Great  Britain  require  or 
justify  oppressive  and  illegal  practices," 
^  Secretary  of  State  to  American  Ambassador  to  Germany,  May   13,    1915; 
official  text,  American  Journal  of  International  Law,  Special  Supplement,  July, 
1915,  pp.   130-131. 

2  Secretary  of  State  to  American  Ambassador  to  Germany,  July  21,  1915; 
ibid.,  p.   156. 

'Secretary  of  State  to  American  Ambassador  to  England,  October  21,  1915; 
official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.  88. 


184        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

If  the  matter  rested  here,  it  might  be  questioned  whether  retalia- 
tion finds  a  place  in  a  scheme  of  law,  but  certainly  retaliation  involv- 
ing injury  to  neutral  right  is  a  very  different  thing  from  retaliation 
which  affects  solely  the  enemy.  But  the  matter  does  not  rest  here, 
for,  on  February  16,  1916,  the  Imperial  German  Government  solemnly 
stated  to  the  United  States  that: 

Germany  has  limited  her  submarine  warfare  because  of  her 
long-standing  friendship  with  the  United  States,  and  because 
by  the  sinking  of  The  Lusitania,  which  caused  the  death  of 
citizens  of  the  United  States,  the  German  retaliation  affected 
neutrals,  which  was  not  the  intention,  as  retaliation  should  -be 
confined  to  enemy  subjects.' 

Section  3.   Necessity 

In  the  matter  of  necessity,  priority  may  be  claimed  for  Germany, 
for  as  early  as  the  4th  of  August,  1914,  the  Imperial  German  Chan- 
cellor von  Bethmann-Hollweg  made  the  following  announcement  in 
the  Reichstag  applying  the  doctrine  to  the  invasion  of  Luxemburg 
and  Belgium,  not  only  in  violation  of  international  law  but  of  solemn 
treaties  to  which  Germany  was  a  party: 

We  are  now  in  a  state  of  necessity,  and  necessity  knows  no 
law.  Our  troops  have  occupied  Luxemburg  and  perhaps  are 
already  on  Belgian  soil.  Gentlemen,  that  is  contrary  to  the  dic- 
tates of  international  law.  It  is  true  that  the  French  Govern- 
ment has  declared  at  Brussels  that  France  is  willing  to  respect 
the  neutrality  of  Belgium,  as  long  as  her  opponent  respects  it. 
We  knew,  however,  that  France  stood  ready  for  invasion.  France 
could  wait,  but  we  could  not  wait.  A  French  movement  upon 
our  flank  upon  the  Lower  Rhine  might  have  been  disastrous, 
So  we  were  compelled  to  override  the  just  protest  of  the  Luxem- 
burg and  Belgian  Governments.  The  wrong — I  speak  openly — 
that  we  are  committing  we  will  endeavor  to  make  good  as  soon 
as  our  military  goal  has  been  reached.  Anybody  who  is  threat- 
ened as  we  are  threatened,  and  is  fighting  for  his  highest  pos- 
sessions, can  only  have  one  thought — how  he  is  to  hack  his  way 
through. - 

It  will  be  observed  that  in  this  passage  the  Imperial  Chancellor 
frankly  admitted  that  the  invasion  of  Belgium  was  contrary  to  the 
dictates  of  international  law;  that,  in  invading  Belgium,  Germany 
committed  a  wrong,  which,  however,  his  Government  would  endeavor 
to  right  when  it  had  achieved  its  purpose. 

*  MSS.,  Department  of  State. 

2  London  Times,  August  11,  1914. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      185 

The  Chancellor  was  correctly  advised  and  stood  upon  firm  ground 
when  he  informed  the  Reichstag  that  international  law  condemned 
the  action  of  the  government,  and  no  statement  concerning  inter- 
national law  made  by  a  German  authority  in  the  past  three  years 
has  met  with  such  universal  approval  as  that  the  invasion  of  Belgium 
was  contrary  to  international  law.  It  was  contrary  not  merely  to 
international  law,  by  virtue  whereof  a  nation  has  a  right  to  be  neu- 
tral, but  it  was  contrary  to  express  stipulations  of  treaties  to  which 
Germany  was  a  party,  creating  an  independent  Belgium  and  guaran- 
teeing its  neutrality. 

First,  as  to  the  right  of  a  nation  to  remain  neutral  and  the  duty 
of  a  belligerent  to  respect  its  neutrality. 

It  is  not  necessary  to  refer  to  treatises  on  international  law  to 
establish  the  right  and  the  duty,  because  the  Chancellor  had  at 
hand  the  Kriegsbrauch  im  Landkriege,  published  for  the  guidance  of 
officers  and  soldiers  in  the  conduct  of  land  warfare.  This  remark- 
able manual  states  that: 

1.  The  territory  of  neutral  states  is  unavailable  for 
any  of  the  belligerents,  while  the  war  lasts.  When  war  has 
been  declared,  the  government  of  the  neutral  state  must  pre- 
vent individuals  of  either  belligerent  party  from  marching 
through  it;    .     .     . 

2.  If  the  neutral  state  is  contiguous  to  the  territory  where 
the  war  is  taking  place,  its  government  must  see  to  it  that  a 
sufficiently  strong  force  he  on  its  frontier  to  prevent  its  crossing 
by  portions  of  the  belligerent  armies  with  the  object  of  march- 
ing through.  .   .    .^ 

It  will  be  observed  that  a  neutral  state  may  not  allow  the  forces 
of  the  belligerents  to  enter  its  territory  and  that  if  they  do  they  are 
to  be  regarded  as  trespassers.  The  KriegshraucJi  im  Landkriege, 
however,  modifies  the  strictness  of  this  provision  by  the  following 
concession,  in  the  interest  of  humanity: 

4.  The  neutral  state  may  grant  right  of  passage  or  trans- 
port of  wounded  or  sick  through  its  territory  without  violating 
its  neutrality  thereby;  it  must,  however,  see  to  it  that  such 
hospital  trains  do  not  carry  either  war  personnel  or  war  mate- 
rial, except  such  as  is  necessary  for  the  care  of  the  siek.^ 

This  concession,  however,  is  not  to  be  allowed  to  prisoners  of  war. 

'  Kriegsbrauch  im  Landkriege,  p.  69. 
ilbid.,  p.  73. 


186        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

5.  The  passage  or  transport  of  prisoners  of  war  through 
neutral  territory  is,  on  the  other  hand,  not  to  be  granted,  since 
this  would  be  open  favoring  of  him  who  was  in  a  position  to 
take  prisoners  of  war  in  great  numbers,  while  his  railroads, 
water  highways,  and  other  means  of  transport  are  left  at  his 
disposal  for  actual  war  purposes.^ 

In  the  comment  with  which  the  Kriegshrauch  im  Landkriege  is 
supplied  the  following  flagrant  cases  of  the  violation  of  neutrality 
are   cited : 

The  passage  of  French  troops  through  Prussian  territory  in 
October,  1805,  was  a  disregard  of  Prussian  neutrality. — When 
the  Swiss  Government  permitted  the  Allies  to  march  through 
its  territory  in  the  year  1814,  it  thereby  renounced  the  rights 
of  a  neutral  State. — In  the  Franco-Prussian  War  the  Prussian 
Government  complained  of  the  behavior  of  Luxemburg  in  not 
stopping  a  passage  en  masse  of  fugitive  French  soldiers  after 
the  fall  of  Metz  through  the  territory  of  the  Grand  Duchy .^ 

After  having  enumerated  and  illustrated  the  "most  important 
duties  of  neutral  states  so  far  as  land  warfare  is  concerned,"  the 
Kriegshrauch  im  Landkriege  proceeds  to  lay  down  the  punishment 
incurred  by  a  neutral  State  which  violates  its  neutrality.    Thus: 

If  they  are  disregarded  by  the  neutral  State  itself,  then  it 
has  to  give  satisfaction  or  compensation  to  the  belligerent  who  is 
prejudiced  thereby.  This  case  may  also  occur  if  the  Govern- 
ment of  the  neutral  State,  with  the  best  intentions  to  abstain 
from  proceedings  which  violate  neutrality,  has,  through  domestic 
or  foreign  reasons,  not  the  power  to  make  its  intentions  good.' 

The  maintenance  of  neutrality  is  considered  to  be  so  important,  and 
the  principle  just  formulated  so  fundamental,  that  the  Kriegshrauch 
im  Landkriege  deems  it  necessary  in  this  connection  to  cite  an  example 
lest  the  meaning  of  the  text  be  not  sufficiently  clear.    Thus: 

If,  for  example,  one  of  the  two  belligerents  by  main  force 
marches  through  the  territory  of  a  neutral  State  and  this  State 
is  not  in  a  position  to  put  an  end  to  this  violation  of  its  neu- 
trality, then  the  other  belligerent  has  the  right  to  engage  the 
enemy  on  the  hitherto  neutral  territory,' 

After  this  accurate  statement  of  some  of  the  duties  of  neutral 
States,  the  Kriegshrauch  im  Landkriege  next  recognizes  that  duties 
involve  corresponding  rights,  such  as: 

'  Kriegshrauch  im  Landkriege,  p.  73. 
2IUd.,  p.  69. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      187 

1.  For  the  neutral  State  the  status  of  peace  times  still  con- 
tinues, even  in  its  relation  with  the  belligerents. 

2.  The  belligerent  States  have  to  respect  the  inviolability  of 
the  neutral  and  the  undisturbed  exercise  of  its  sovereignty  in 
its  home  affairs,  to  abstain  from  any  attack  upon  the  same,  even 
if  the  necessity  of  war  should  make  such  an  attack  desirable. 
Neutral  States,  therefore,  possess  also  the  right  of  asylum  for 
single  members  or  nationals  of  the  belligerent  Powers,  so  far 
as  no  favor  to  one  or  other  of  them  is  thereby  implied.  Even 
the  reception  of  a  smaller  or  larger  detachment  of  troops  which 
is  fleeing  from  pursuit  does  not  give  the  pursuer  the  right  to 
continue  his  pursuit  across  the  frontier  of  the  neutral  territory. 
It  is  the  business  of  the  neutral  State  to  prevent  troops  crossing 
over  in  order  to  reassemble  in  the  chosen  asylum,  to  re-form, 
and  there  to  prepare  for  a  new  attack. 

3.  If  the  territory  of  a  neutral  State  is  trespassed  upon  by 
one  of  the  belligerent  parties  for  the  purpose  of  battle,  then 
this  State  has  the  right  to  proceed  against  this  violation  of 
its  territory  with  all  the  means  in  its  power  and  to  disarm  the 
trespassers.  If  the  trespass  has  been  committed  on  the  orders 
of  the  Army  Command,  then  the  State  concerned  is  bound  to 
give  satisfaction  and  compensation;  if  it  has  been  committed 
on  their  own  responsibility,  then  the  individual  offenders 
can  be  punished  as  criminals.  If  the  violation  of  the  neutral 
territory  is  due  to  ignorance  of  its  frontiers  and  not  to  evil 
intention,  then  the  neutral  State  can  demand  the  immediate 
removal  of  the  wrong,  and  can  insist  on  necessary  measures  being 
taken  to  prevent  a  repetition  of  such  disregard. 

4.  Every  neutral  State  can,  so  long  as  it  itself  keeps  faith 
and  loyalty,  demand  that  the  same  respect  shall  be  paid  to  it  as 
in  time  of  peace.  It  is  entitled  to  the  presumption  that  it  will 
observe  strict  neutrality  and  will  not  make  use  of  any  declara- 
tions or  other  transactions  as  a  cloak  for  an  injustice  against  one 
belligerent  in  favor  of  the  other,  or  will  use  them  indifferently 
for  both.  This  is  particularly  important  in  regard  to  passes, 
commissions,  and  credentials. 

6.  Neutral  States  may  continue  to  maintain  diplomatic  inter- 
course with  the  belligerent  Powers  undisturbed,  so  far  as  mili- 
tary measures  do  not  raise  obstacles  in  the  way  of  it.^ 

Four  of  the  neutral  rights  corresponding  to  neutral  duties  have 
been  quoted  in  full,  and  the  reader's  attention  is  particularly  called 
to  the  duty  imposed  upon  belligerent  Powers  to  abstain  from  any 
attack  upon  neutral  territory,  "even  if,"  to  quote  the  exact  language 
of  the  Kriegshraucli  im  Landkriege,  "the  necessity  of  war  should 
make  such  an  attack  desirable."  The  reader  has  no  doubt  observed 
that,  in  the  section  devoted  to  neutral  duties,  no  illustration  is  given 

'  Eriegshrauch  im  Landkriege,  pp.  72-75. 


188        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  the  violation  of  neutrality  by  Prussia,  although  Prussia  is  shown  as 
a  sufferer  in  1805  at  the  hands  of  the  French,  and  Switzerland,  when 
neutralized,  is  criticised  as  renouncing  the  rights  of  a  neutral  State  be- 
cause it  allowed  the  allied  armies  to  march  through  its  territory  in  the 
year  1814  to  reach  France.  Luxemburg,  likewise  a  neutralized  State, 
was  blamed  for  its  failure  to  observe  a  strict  neutrality  in  the  Franco- 
Prussian  War.  The  war  of  1914  supplies  a  Belgian  precedent  neces- 
sarily lacking  in  the  edition  of  1902.  There  are  three  neutralized 
States  of  Europe — Switzerland,  Luxemburg,  and  Belgium — and  in 
some  future  edition  of  the  Kriegshrauch  im  Landkriege  Belgium's 
name  may  appear  and  be  apportioned  its  blame  for  the  violation 
of  neutrality  in  1914. 

So  much  for  the  accuracy  of  the  Chancellor's  statement  in  so  far 
as  it  is  based  upon  the  unwritten  or  customary  law  of  Nations.  Next, 
as  to  the  provisions  of  treaties  creating  an  independent  Belgium  and 
guaranteeing  its  neutrality. 

On  April  19,  1839,  Great  Britain,  Austria,  France,  Prussia,  and 
Russia,  on  the  one  part,  and  the  Netherlands,  on  the  other,  con- 
cluded a  treaty,  of  which  the  seventh  article  is  thus  worded: 

Belgium  within  the  limits  specified  in  Articles  I,  II,  and  IV 
shall  form  an  Independent  and  perpetually  Neutral  State.  It 
shall  be  bound  to  observe  such  Neutrality  towards  all  other 
States.' 

Lest  there  may  be  some  doubt  as  to  the  meaning  of  the  contracting 
parties,  although  their  meaning  would  seem  to  be  tolerably  clear  from 
the  portion  of  their  handiwork  already  quoted,  it  is  to  be  noted  that, 
in  the  first  article  of  the  treaty,  "His  Majesty  the  King  of  the  Nether- 
lands, Grand  Duke  of  Luxemburg,  engages  to  cause  to  be  immedi- 
ately converted  into  a  treaty  with  His  Majesty  the  King  of  the  Bel- 
gians, the  articles  annexed  to  the  present  act,  and  agreed  upon  by 
common  consent,  under  the  auspices  of  the  courts  of  Great  Britain, 
Austria,  France,  Prussia,  and  Russia,"'  Article  7  is  one  of  these 
articles. 

But  this  is  not  all.  By  Article  2  of  the  treaty  of  the  same  date, 
concluded  by  the  five  great  Powers  and  thus  called  the  Quintuple 
Treaty,  "Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  His  Majesty  the  Emperor  of  Austria,  King  of 
Hungary  and  Bohemia,  His  Majesty  the  King  of  the  French,  His 
Majesty  the  King  of  Prussia,  and  His  Majesty  the  Emperor  of  All 

*  British  and  Foreign  State  Papers,  vol.  27,  p.  994. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      189 

the  Russias,  declare  that  the  articles  mentioned  in  the  preceding 
article,  are  considered  as  having  the  same  force  and  validity  as  if 
they  were  textually  inserted  in  the  present  act,  and  that  they  are 
thus  placed  under  the  guarantee  of  their  said  Majesties."  '  Article  7 
was  one  of  these  articles. 

But  this  is  not  all.  Their  Dutch  and  their  Belgian  Majesties  con- 
cluded on  the  same  day  the  treaty,  which  they  were  obliged  to  do  to 
the  satisfaction  of  the  other  Majesties. 

But  this  is  not  all.  His  Majesty  the  King  of  Prussia  and  His 
Majesty  the  Emperor  of  Austria,  King  of  Hungary  and  Bohemia, 
caused  themselves  to  be  authorized  by  the  Diet  of  the  German  States 
to  approve  on  their  behalf  the  treaty  of  April  19,  1839,  including 
Article  7,  so  that  not  only  Prussia  and  Austria  but  every  German 
political  entity  approved  this  treaty.  It  would  seem,  therefore,  as 
if  it  should  bind  the  Imperial  German  Empire,  composed  of  Prussia 
and  of  the  German-speaking  states  ratifying  this  treaty. 

In  1870,  the  war  with  France,  **  which  lay  in  the  logic  of  his- 
tory," broke  out  and  Great  Britain,  fearing  that  the  treaty  of 
April  19,  1839,  might  be  violated  by  Prussia  and  the  North  German 
Confederation  (of  which  it  formed  a  part),  on  the  one  hand,  and  by 
France,  on  the  other,  concluded  a  treaty  with  Prussia  on  the  9th  of 
August  ^  and  two  days  later  *  a  similar  one  with  France,  in  which  the 
contracting  parties  expressed  themselves  as  "desirous  at  the  present 
time  of  recording  in  a  solemn  act  their  fixed  determination  to  main- 
tain the  independence  and  neutrality  of  Belgium,  as  provided  in 
Article  VII  of  the  treaty  signed  at  London  on  the  19th  April,  1839, 
between  Belgium  and  the  Netherlands,  which  article  was  declared  by 
the  Quintuple  Treaty  of  1839  to  be  considered  as  having  the  same 
force  and  value  as  if  textually  inserted  in  the  said  Quintuple  Treaty"; 
and  because  of  this  desire  "their  said  Majesties  have  determined  to 
conclude  between  themselves  a  separate  treaty,  which,  without  im- 
pairing or  invalidating  the  conditions  of  the  said  Quintuple  Treaty, 
shall  be  subsidiary  and  accessory  to  it. "  *     Therefore,  Great  Britain 

^  British  and  Foreign  State  Papers,  vol.  27,  p.  991. 

*  Ibid.,  vol    60,  p.  13. 
'  Ibid.,  p.  10. 

*  Article  I  of  the  treaty  between  Great  Britain  and  Prussia  reads: 

His  Majesty  the  King  of  Prussia  having  declared  that  notwithstanding 
the  hostilities  in  which  the  North  German  Confederation  is  engaged  with 
France,  it  is  his  fixed  determination  to  respect  the  neutrality  of  Belgium, 
so  long  as  the  same  shall  be  respected  by  France,  Her  Majesty  the  Queen 
of  the  United  Kingdom  of  Great  Britain  and  Ireland  on  her  part  declares 
that,  if  during  the  said  hostilities  the  armies  of  France  should  violate  that 
neutrality,  she  will  be  prepared  to  cooperate  with  His  Prussian  Majesty 


190        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

and  Prussia — for,  fortunately,  it  is  not  necessary  to  consider  France 
in  this  connection,  although  a  like  treaty  was  concluded  between 
Great  Britain  and  France — agreed,  in  the  event  of  the  violation  of 
Belgium's  neutrality,  to  employ  their  land  and  naval  forces  to  secure 
"then  and  thereafter,  the  independence  and  neutrality  of  Belgium." 
The  agreement  was  to  run  for  the  period  of  twelve  months  after  the 
conclusion  of  the  treaty  of  peace  between  the  then  belligerents,  "and 
on  the  expiration  of  that  time  the  independence  and  neutrality  of 
Belgium  will,  so  far  as  the  High  Contracting  Parties  are  respectively 
concerned,  continue  to  rest  as  heretofore  on  Article  I  of  the  Quintuple 
Treaty  of  the  19th  April,  1839." 

It  appears,  therefore,  that,  upon  the  expiration  of  the  twelve 
months  for  which  the  treaty  was  concluded,  Germany — for  Prussia 
had  by  this  time  become  Germany — and  Great  Britain  reverted  to 
the  Quintuple  Treaty  which  they  had  expressly  recognized  in  1870 
as  binding  their  future  conduct.  Belgium,  it  would  seem,  was  justi- 
fied in  considering  its  independence  and  its  neutrality  assured,  for 
the  treaty  concluded  by  Holland  and  Belgium  on  April  19,  1839, 
was  guaranteed  by  the  five  great  Powers  of  Europe  on  the  same  day, 
and  this  treaty  was  solemnly  recognized  in  1870  and  declared  to  be 
binding  upon  Great  Britain  and  Germany,  then  easily  the  first  Powers 
of  Europe. 

But  this  was  not  all.    In  the  year  of  1871,  when  Great  Britain, 

for  the  defence  of  the  same  in  such  manner  as  may  be  mutually  agreed 
upon,  employing  for  that  purpose  her  naval  and  military  forces  to  insure 
its  observance,  and  to  maintain,  in  conjunction  with  His  Prussian  Majesty, 
then  and  thereafter,  the  independence  and  neutrality  of  Belgium. 

It  is  clearly  understood  that  Her  Majesty  the  Queen  of  the  United  King- 
dom of  Great  Britain  and  Ireland  does  not  engage  herself  by  this  Treaty 
to  take  part  in  any  of  the  general  operations  of  the  war  now  carried  on 
between  the  North  German  Confederation  and  France,  beyond  the  limits 
of  Belgium,  as  defined  in  the  Treaty  between  Belgium  and  the  Netherlands 
of    19th   April,    1839. 

Article  II  reads: 

His  Majesty  the  King  of  Prussia  agrees  on  his  part,  in  the  event  pro- 
vided for  in  the  foregoing  Article,  to  cooperate  with  Her  Majesty  the  Queen 
of  the  United  Kingdom  of  Great  Britain  and  Ireland,  employing  his  naval 
and  military  forces  for  the  purpose  aforesaid;  and,  the  case  arising,  to 
concert  with  Her  Majesty  the  measures  which  shall  be  taken,  separately 
or  in  common,  to  secure  the  neutrality  and  independence  of  Belgium. 

Article  III  reads: 

This  Treaty  shall  be  binding  on  the  High  Contracting  Parties  during 
the  continuance  of  the  present  war  between  the  North  German  Confedera- 
tion and  France,  and  for  twelve  months  after  the  ratification  of  any  Treaty 
of  Peace  concluded  between  those  Parties;  and  on  the  expiration  of  that 
time  the  independence  and  neutrality  of  Belgium  will,  so  far  as  the  High 
Contracting  Parties  are  respectively  concerned,  continue  to  rest  as  here- 
tofore on  Article  I  of  the  Quintuple  Treaty  of  the  19th  April,  1839.  {British 
and  Foreign  State  Papers,  vol.  60,  pp.  13-17.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      191 

Germany,  and  France — for  France  was  likewise  a  party  to  the  treaty 
— were  remitted  to  the  Treaty  of  1839,  the  Protocol  of  London,  signed 
January  17,  1871,  to  which  France  adhered  on  March  13,  1871,  gave 
to  international  agreements  a  force  and  effect  and  a  guarantee  which 
they  had  not  hitherto  possessed,  by  providing  that  they  could  not  be 
changed  without  the  consent  of  the  contracting  parties  amicably  had/ 
And  the  exceptional  and  favored  position  of  Belgium,  caused  by  these 
treaties,  was  referred  to  by  the  distinguished  Belgian  statesman,  the 
late  Monsieur  Beernaert,  in  an  address  at  the  First  Hague  Peace  Con- 
ference of  1899.2 

But  still  this  was  not  all.  In  1911,  in  1913,  and  on  July  31,  1914, 
four  days  before  the  neutrality  of  Belgium  was  violated  by  German 
troops,  the  Belgian  Government  was  privately  and  publicly  assured  of 
the  binding  effect  of  the  treaty  of  April  19,  1839,  and  of  Germany's 
intention  to  observe  its  provisions.  Thus,  Monsieur  Davignon,  the 
Belgian  Minister  for  Foreign  Affairs,  writing  under  date  of  July  31, 
1914,  to  the  Belgian  Ministers  at  Berlin,  London,  and  Paris,  records  a 
conversation  of  the  Secretary-General  of  the  Ministry  of  Foreign 
Affairs,  who  asked  the  German  Minister  (Herr  von  Biilow)  "if  he 
knew  of  the  conversation  which  he  had  had  with  his  predecessor,  Herr 
von  Flotow,  and  of  the  reply  which  the  Imperial  Chancellor  had 
instructed  the  latter  to  give. ' '  *  The  circumstances  relating  to  each 
of  the  three  incidents  are  thus  related  by  Monsieur  Davignon  in  the 
note  under  consideration: 

In  the  course  of  the  controversy  which  arose  in  1911  as  a 
consequence  of  the  Dutch  scheme  for  the  fortification  of  Flush- 
ing, certain  newspapers  had  maintained  that  in  the  case  of  a 
Franco-German  war  Belgian  neutrality  would  be  violated  by 
Germany. 

^  The  Plenipotentiaries  of  the  North  German  Confederation,  Austria-Hungary, 
(France),  Great  Britain,  Italy,  Russia,  and  Turkey,  assembled  today  in  con- 
ference, recognize  that  it  is  an  essential  principle  of  the  law  of  nations  that 
no  Power  can  liberate  itself  from  the  engagements  of  a  treaty,  nor  modify  the 
stipulations  thereof,  except  as  the  result  of  the  consent  of  the  contracting  parties, 
by  means  of  an  amicable  understanding.  (British  and  Foreign  State  Papers, 
vol.  61,  pp.  1198-99.) 

2  As  to  Belgium  you  know  its  situation  is  special.  It  is  neutral  and  its  neu- 
trality is  guaranteed  by  the  great  Powers,  and  particularly  by  our  powerful 
neighbors.  We  therefore  cannot  be  invaded,  and  how  could  the  Belgian  Govern- 
ment submit  for  the  approval  of  our  legislature  a  convention  based  on  the 
assimiption  that  the  great  States  will  fail  in  their  engagements  regarding  ua, 
a  convention  that  could  sanction  in  advance  acts  that  could  only  be  an  indis- 
putable abuse  of  force?  {Conference  Internationale  de  la  Paix;  La  Haye,  18 
mai-20  juillet,  1899;  nouvelle  Mition;  La  Haye,  M.  Nyhoff,  1907;  part  3,  p.  89.) 

^Belgian  Orey  Book  (No.  1),  doc.  No.  12;  Diplomatic  Documents  Relating  to 
the  Outbreak  of  the  European  War,  p.  366. 


192        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  Department  of  Foreign  Affairs  had  suggested  that  a 
declaration  in  the  German  Parliament  during  a  debate  on  foreign 
affairs  would  serve  to  calm  public  opinion,  and  to  dispel  the 
mistrust  which  was  so  regrettable  from  the  point  of  view  of  the 
relations  between  the  two  countries. 

Herr  von  Bethmann-Hollweg  replied  that  he  had  fully  appre- 
ciated the  feelings  which  had  inspired  our  representations.  He 
declared  that  Germany  had  no  intention  of  violating  Belgian 
neutrality,  but  he  considered  that  in  making  a  public  declara- 
tion Germany  would  weaken  her  military  position  in  regard  to 
France,  who,  secured  on  the  northern  side,  would  concentrate 
all  her  energies  on  the  east. 

Baron  van  der  Elst,  continuing,  said  that  he  perfectly  under- 
stood the  objections  raised  by  Herr  von  Bethmann-Hollweg  to 
the  proposed  public  declaration,  and  he  recalled  the  fact  that 
since  then,  in  1913,  Herr  von  Jagow  had  made  reassuring  decla- 
rations to  the  Budget  Commission  of  the  Reichstag  respecting  the 
maintenance  of  Belgian  neutrality. 

Herr  von  Biilow  replied  that  he  knew  of  the  conversation 
with  Herr  von  Flotow,  and  that  he  was  certain  that  the  senti- 
ments expressed  at  that  time  had  not  changed.^ 

On  August  1,  1914,  Count  de  Lalaing,  Belgian  Minister  at  Lon- 
don, informed  Monsieur  Davignon  that  ''Great  Britain  has  asked 

^  Belgian  Grey  Book  (No.  1),  doc.  No.  12;  Diplomatic  Documents  Relating  to 
the  Outbreak  of  the  European  War,  p.  367. 

For  the  completeness  of  the  record,  the  inclosure  contained  in  Monsieur 
Davignon's  instruction  is  here  reproduced,  consisting  of  a  note  dated  May  2, 
1913,  from  Baron  Beyens,  Belgian  Minister  to  Berlin,  to  Monsieur  Davignon, 
Belgian  Minister  for  Foreign  Aifairs: 

I  have  the  honour  to  bring  to  your  notice  the  declaration  respecting 
Belgian  neutrality,  as  published  in  the  semi-official  Norddeutsche  AUgemeine 
Zeitung,  made  by  the  Secretary  of  State  and  the  Minister  of  War,  at  the 
meeting  of  the  Budget  Committee  of  the  Reichstag  on  April  29th: — 

"  A  member  of  the  Social  Democrat  Party  said :  The  approach  of  a 
■war  between  Germany  and  France  is  viewed  with  apprehension  in  Belgium, 
for  it  is  feared  that  Germany  will  not  respect  the  neutrality  of  Belgium.' 
"Herr  von  Jagow,  Secretary  of  State,  replied:  'Belgian  neutrality  is 
provided  for  by  International  Conventions  and  Germany  is  determined  to 
respect  those  Conventions.' 

"  This  declaration  did  not  satisfy  another  member  of  the  Social  Demo- 
crat Party.  Herr  von  Jagow  said  that  he  had  nothing  to  add  to  the  clear 
statement  he  had  made  respecting  the  relations  between  Germany  and 
Belgium. 

"  In  answer  to  fresh  inquiries  by  a  member  of  the  Social  Democrat  Party, 
Herr  von  Heeringen,  the  Minister  of  War,  replied :  '  Belgium  plays  no  part 
in  the  causes  which  justify  the  proposed  reorganization  of  the  German 
military  system.  That  proposal  is  based  on  the  situation  in  the  East. 
Germany  will  not  lose  sight  of  the  fact  that  the  neutrality  of  Belgium  is 
guaranteed   by   international    treaty.' 

"  A  member  of  the  Progressive  Party  having  once  again  spoken  of  Bel- 
gium, Herr  von  Jagow  repeated  that  this  declaration  in  regard  to  Belgium 
was  sufficiently  clear."  {Diplomatic  Documents  Relating  to  the  Outbreak 
of  the  European  War,  pp.  367-368.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      193 

France  and  Germany  separately  if  they  intend  to  respect  Belgian 
territory  in  the  event  of  its  not  being  violated  by  their  adversary. 
Germany's  reply  is  awaited.  France  has  replied  in  the  affirmative."  ' 
On  August  4,  1914,  the  British  Secretary  for  Foreign  Affairs  in- 
formed the  British  Ambassador  at  Berlin  that: 

The  German  Government  have  delivered  to  the  Belgian  Gov- 
ernment a  note  proposing  friendly  neutrality  entailing  free  pas- 
sage through  Belgian  territory,  and  promising  to  maintain  the 
independence  and  integrity  of  the  kingdom  and  its  possessions 
at  the  conclusion  of  peace,  threatening  in  case  of  refusal  to  treat 
Belgium  as  an  enemy.  An  answer  was  requested  within  twelve 
hours. 

We  also  understand  that  Belgium  has  categorically  refused 
this  as  a  flagrant  violation  of  the  law  of  nations. 

His  Majesty's  Government  are  bound  to  protest  against  this 
violation  of  a  treaty  to  which  Germany  is  a  party  in  common 
with  themselves,  and  must  request  an  assurance  that  the  demand 
made  upon  Belgium  will  not  be  proceeded  with  and  that  her 
neutrality  will  be  respected  by  Germany.  You  should  ask  for 
an  immediate  reply.^ 

In  compliance  with  this  direction,  the  British  Ambassador  to  Berlin 
''called,"  to  quote  his  report,  ''upon  the  Secretary  of  State  that 
afternoon  and  inquired,  in  the  name  of  His  Majesty's  Government, 
whether  the  Imperial  Government  would  refrain  from  violating  Bel- 
gian neutrality.  Herr  von  Jagow  at  once  replied  that  he  was  very 
sorry  to  say  that  his  answer  must  be  'No,'  as,  in  consequence  of  the 
German  troops  having  crossed  the  frontier  that  morning,  Belgian 
neutrality  had  already  been  violated. ' '  ^ 

The  break  between  the  two  Governments  had  come,  for  the 
British  demand  was  an  ultimatum  and  the  failure  to  comply  with 
it  was  war.  Later  in  the  day  the  British  Ambassador  waited  upon 
the  Chancellor,  who  had  just  returned  from  the  Reichstag,  where 
he  had  justified  the  invasion  of  Belgium  on  the  plea  of  necessity. 
Of  the  interview  the  British  Ambassador  gives  the  following  account: 

I  found  the  Chancellor  very  agitated.  His  Excellency  at 
once  began  a  harangue,  which  lasted  for  about  twenty  minutes. 
He  said  that  the  step  taken  by  His  Majesty's  Government  was 
terrible  to  a  degree;  just  for  a  word — "neutrality,"  a  word 
which  in  war  time  had  so  often  been  disregarded — just  for  a 

'  Diplomatic  Documents  Relating  to  the  Outhreak  of  the  European  War, 
p.  368 

2  The  British  Blue  Book   (No.  1),  doe.  No.  153;  ihid.,  pp.  1002-1003. 

•  Diplomatic  Documents  lielatvng  to  the  Outbreak  of  the  European  War, 
doc.  No.   160,  p.   1006. 


194        A  SURVEY  OF  INTERN ATIONi\L  RELATIONS 

scrap  of  paper  Great  Britain  was  going  to  make  war  on  a  kin- 
dred nation  who  desired  nothing  better  than  to  be  friends  with 
her.^ 

In  vino  Veritas,  and  in  moments  of  excitement  the  truth  escapes. 
Yet  this  truth  about  Belgium  was  expressed  ten  days  later,  on  a 
very  solemn  occasion,  by  Kaiser  William  himself  in  a  letter  in  his  own 
handwriting,  delivered  to  the  American  Ambassador  for  transmis- 
sion to  the  President  of  the  United  States,  in  which  the  King  of 
Prussia  and  German  Emperor,  referring  to  his  proposition  to  Sir 
Edward  Grey  to  leave  France  alone  if  Great  Britain  forced  it  to 
remain  neutral,  said: 

Instead  he  declared  England  had  to  defend  Belgian  neu- 
trality, which  had  to  be  violated  by  Germany  on  strategical 
grounds,  news  having  been  received  that  France  was  already 
preparing  to  enter  Belgium  and  the  King  of  the  Belgians  having 
refused  my  petition  for  a  free  passage  under  guarantee  of  his 
country's  freedom.^ 

Ernst  Moritz  Arndt,  the  poet  of  the  War  of  Liberation  and  of 
German  unity,  and  the  protagonist  of  Pan-Germanism,  foresaw  and 
predicted  the  future  with  a  ruthless  and  brutal  frankness  that  makes 
the  blood  curdle  of  those  who  really  believe  that  little  states  and 
little  peoples  should  have  some  little  place  in  the  sun.  In  1834,  after 
Belgium  had  broken  away  from  Holland,  but  before  its  independence 
was  definitely  recognized  and  its  international  position  as  a  neu- 
tralized state  fixed  under  the  guarantee  of  the  German-speaking  peo- 
ples, Arndt  wrote: 

Belgium,  the  granary  and  armory,  is  predestined  to  be  the 
battlefield  in  the  struggle  for  the  Meuse  and  the  Rhine.  I  ask 
any  General  or  Statesman  who  has  seriously  considered  the  prob- 
lems of  war  and  politics,  whether  Belgium  can  remain  neutral  in 
a  European  war — that  is  to  say,  can  be  respected  as  neutral  any 
longer  than  may  appear  expedient  to  the  Power  which  feels 
itself  possessed  of  the  best  advantages  for  attack/ 

This  question  Arndt 's  countrymen  have  answered,  for  did  not 
Bismarck  say,  in  the  course  of  negotiations  with  Italy  in  1887,  that 

^  Diplomatic  Documents  Relating  to  the  Outbreak  of  the  European  War, 
doc.  No.  160,  p.  1007. 

2  United  States  Official  Bulletin  Issued  by  the  Committee  on  Public  Informa- 
tion, August  14,  1917,  p.  4. 

•  Arndt,  Schriften  fur  und  an  seine  lieben  Deutschen  {Leipzig,  1845),  vol.  3, 
p.  178. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     195 

a  treaty  is  "  a  scrap  of  paper, " '  or,  more  euphemistically  but  not 
less  certainly  expressed  in  his  autobiography,  that  "International 
policy  is  a  jQuid  element  which,  under  certain  conditions,  will  solidify, 
but,  on  a  change  of  atmosphere,  reverts  to  its  original  diffuse  con- 
dition. "^ 

But  to  return  to  Arndt.  Knowing  the  England  of  his  day  and 
divining  the  Germany  of  the  future,  he  instinctively  felt  that  the 
island  kingdom  stood  in  the  way  of  a  greater  Germany.  Therefore, 
whether  in  the  teeth  of  a  treaty  or  not,  England  and  Germany  were 
to  meet  in  the  Low  Countries: 

On  the  fields  of  Belgium  Germany  and  England  will  of  neces- 
sity be  everlastingly  at  war  for  the  possession  of  the  Rhine  and 
the  supremacy  of  the  Channel.* 

The  plea  of  necessity,  discarded  by  the  Kriegsbrauch  im  Land- 
kriege,  proclaimed  by  the  Chancellor  in  terms  which  Arndt  would 
have  approved,  has  had  its  day  in  courts  of  municipal  law  and 
has  been  found  wanting;  and  we  have  with  our  own  eyes  seen, 
as  through  a  glass  darkly,  the  consequences  which  would  follow  if 
the  plea  of  necessity,  banished  from  private  law,  should  find  a  refuge 
in  the  public  law  between  nations. 

In  the  case  of  Regina  v.  Dudley,  decided  by  an  English  court  of 
justice  in  1884,  some  shipwrecked  sailors,  "subject  to  terrible  temp- 
tation and  to  sufferings  which  might  break  down  the  bodily  power  of 
the  strongest  man  and  try  the  conscience  of  the  best,"  to  quote  the 
language  of  the  case,  ' '  put  to  death  a  weak  and  unoffending  boy  upon 
the  chance  of  preserving  their  own  lives  by  feeding  upon  his  flesh 
and  blood  after  he  was  killed."     They  were  later  picked  up  by  a 

*  During  the  last  days  of  March  (1887),  when  a  dispatch  announced  that 
Mr.  Depretis  was  in  conference  with  Messrs.  Crispi  and  Zanardelli,  in  order  to 
persuade  them  to  enter  into  the  ministry,  Count  Herbert  von  Bismarck  told 
Count  de  Launay  that  "  his  father  was  amazed  when  he  realized  that  a  recon- 
struction of  the  cabinet  was  being  effected  in  the  interest  of  the  radical  Left." 

According  to  the  judgment  of  the  German  Chancellor,  this  was  a  step  toward 
a  Republic!  When  the  news  reached  Berlin  that  Mr.  Depretis,  president  of  the 
Council,  assumed  at  the  same  time  the  portfolio  of  Foreign  Affairs,  Prince 
Bismarck  was  profoxmdly  disturbed.  The  German  Ambassador  at  Rome,  and 
the  Italian  Ambassador  at  Berlin,  tried  in  their  dispatches,  but  in  vain,  to 
convince  him  that  the  successor  to  Count  de  Robilant  would  conform  faithfully 
to  the  Treaty:  "Treaties,"  answered  the  Prince,  "are  scraps  of  paper  (sic). 
All  depends  upon  the  manner  of  turning  them  to  account.  Even  an  excellent 
weapon,  in  inexperienced  hands,  may  cause  more  damage  than  good."  (Chiala, 
Pagine  di  storia  contemporanea,  1897,  t.  3,  pp.  497-498.) 

2  Bismarck,   OedanJcen  und  Erinnerungen,  pp.   596-597. 

'  Arndt,  Schriften  fiir  und  an  seine  lieben  Deutschen,  vol.  3,  p.  164. 


196        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

passing  vessel,  brought  to  England,  indicted  for  the  murder  of  the 
boy,  and  convicted,  and  the  conviction  was  affirmed  on  appeal.  In 
delivering  the  unanimous  opinion  of  the  Court  sentencing  the  prison- 
ers convicted  of  murder,  Lord  Chief  Justice  Coleridge  entered  into  a 
very  careful  and  elaborate  examination  of  the  only  plea  advanced 
in  behalf  of  the  prisoners: 

Now  it  is  admitted  that  the  deliberate  killing  of  this  un- 
offending and  unresisting  boy  was  clearly  murder,  unless  the 
killing  can  be  justified  by  some  well-recognized  excuse  admitted 
by  the  law.  It  is  further  admitted  that  there  was  in  this  case 
no  such  excuse,  unless  the  killing  was  justified  by  what  has  been 
called  necessity.  But  the  temptation  to  the  act  which  existed 
here  was  not  what  the  law  has  ever  called  necessity.  Nor  is  this 
to  be  regretted.  Though  law  and  morality  are  not  the  same, 
and  though  many  things  may  be  immoral  which  are  not  neces- 
sarily illegal,  yet  the  absolute  divorce  of  law  from  morality  would 
be  of  fatal  consequence,  and  such  divorce  would  follow  if  the 
temptation  to  murder  in  this  case  were  to  be  held  by  law  an 
absolute  defense  of  it.^ 

After  rejecting  the  plea  of  necessity,  Lord  Chief  Justice  Coleridge 
thus  points  out  the  consequences  of  the  admission  of  the  plea  of 
necessity : 

It  is  not  needful  to  point  out  the  awful  danger  of  admitting 
the  principle  which  has  been  contended  for.  Who  is  to  be  the 
judge  of  this  sort  of  necessity?  By  what  measure  is  the  com- 
parative value  of  lives  to  be  measured?  Is  it  to  be  strength, 
or  intellect,  or  what?  It  is  plain  that  the  principle  leaves  to 
him  who  is  to  profit  by  it  to  determine  the  necessity  which  will 
justify  him  in  deliberately  taking  another's  life  to  save  his  own. 
In  this  case  the  weakest,  the  youngest,  the  most  unresisting  was 
chosen.  Was  it  more  necessary  to  kill  him  than  one  of  the 
grown  men?     The  answer  must  be.  No. 

"So  spake  the  Fiend;  and  with  necessity, 

The  tyrant's  plea,  excused  his  devilish  deeds."  ^ 

'  15  Cox  Criminal  Cases,  624,  14  Queens  Bench  273;  Beale,  Selection  of  Cases 
on  Criminal  Law  (Cambridge,  Mass.,  1894),  pp.  362-363. 


CHAPTER   XI 
BELLIGERENT  USE   OF  NEUTRAL  FLAG 

The  German  correspondence  bristles  with  denunciation  of  the  use 
of  false  flags.  Just  when  false  flags  were  used  in  the  present  war 
it  would  be  hard  to  say.  The  misuse  of  the  neutral  flag  became  the 
subject  of  discussion  because  of  the  use  of  the  American  flag  by  the 
steamer  Lusitania  in  an  inward  or  outward  passage,  or  both,  to  pro- 
tect itself,  in  so  far  as  the  flag  was  a  means  of  protection,  against  the 
German  submarine.  The  Imperial  German  Government  called  this 
incident  to  the  attention  of  the  United  States  in  support  of  the 
charge  that  the  British  Government  had  directed  its  merchant  marine 
to  use  neutral  flags  in  order  to  disguise  its  merchantmen  from  the 
submarine.  It  would  seem,  however,  that  the  flag  was  of  no  great 
importance,  inasmuch  as  commanders  of  the  German  submarines, 
acting  under  instructions  to  refrain  from  attacking  neutral  vessels, 
were  apparently  unable  to  distinguish  the  flag  until  the  fatal  shot 
had  been  fired. 

But,  however  small  and  insignificant  the  flag  may  appear  to  the 
commander,  it  looms  large  in  the  correspondence.  It  may  be  pre- 
mised, before  looking  into  the  matter,  that  the  flag  which  a  vessel  flies 
is  not  the  proof  of  its  nationality,  for  behind  the  flag  is  the  right  to 
fly  it,  and  not  even  the  right  to  fly  it  settles  the  question  of  nation- 
ality. The  flag  may  be  a  rule  of  thumb,  but  the  practice  of  Nations 
prescribes  visit  and  search  of  the  vessel  to  determine  its  character 
irrespective  of  the  flag  which  the  vessel  claims  the  right  to  fly.  The 
correct  doctrine,  it  is  believed,  was  thus  stated  by  Secretary  of  State 
Cass,  writing  in  1860  to  the  American  Minister  to  England : 

In  the  despatch  of  Lord  John  Russell,  I  perceive  he  refers 
to  the  American  flag  as  if  it  were  contended  that  that  national 
ensign  afforded  protection  to  the  vessel  bearing  it.  I  beg  you 
to  assure  his  lordship  that  this  country  advances  no  such  pre- 
tension. The  immunity  of  a  vessel  upon  the  ocean  depends  upon 
her  national  character,  to  be  ascertained,  if  contested,  by  her 
papers,  and,  if  need  be,  by  other  circumstances,  but  not  by  the 
flag  under  which  she  sails.  If  a  foreign  cruiser  boards  a  vessel 
with  American  colors,  and  she  proves  not  to  belong  to  this  eoun- 

197 


198        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

try,  we  have  no  right  to  complain  of  her  examination  or  capture ; 
but  if  the  papers  justify  an  assumption  of  the  flag,  and  she  is 
actually  an  American  vessel,  then  a  trespass  has  been  committed 
by  such  cruiser,  for  which  the  government  to  which  it  belongs 
is  responsible ;  and  the  act  itself  will  be  more  or  less  condemnable 
as  the  circumstances  leading  to  it  are  of  a  character  to  justify 
suspicion  or  to  repel  it,  and  as  the  conduct  of  the  boarding  party 
is  more  or  less  offensive  or  injurious.^ 

The  United  States  naval  war  code,  issued  by  the  Navy  Depart- 
ment (General  Orders  551)  on  June  27,  1900,  forbade  the  use  of 
false  colors  in  Article  7: 

The  use  of  false  colors  in  war  is  forbidden,  and  when  sum- 
moning a  vessel  to  lie  to,  or  before  firing  a  gun  in  action,  the 
national  colors  should  be  displayed  by  vessels  of  the  United 
States.2 

This  prohibition  was  an  attempt  to  subject  naval  operations  to  the 
same  rule  which  obtains  in  land  warfare,  where  the  use  of  false 
colors  has  been  absolutelj^  prohibited.^  The  question  was  reconsidered 
by  American  naval  officers  at  the  Naval  War  College  in  1903  and 
they  reported  that : 

The  use  of  "false  colors"  is  evidently  subject  to  much  dif- 
ference of  opinion  (see  Perels,  Seerecht  der  Gegenwart,  p.  182). 
No  scheme  of  such  use  has  been  proposed  which  seems  satis- 
factory, and  it  is  difficult  to  see  how  honorable  warfare  can 
be  conducted  upon  such  a  basis  as  is  implied  in  the  use  of  false 
colors.  Undoubtedly,  the  rule  prohibiting  the  use  of  false  colors 
in  war  should  be  made  with  definite  provisions  in  regard  to 
legitimate  ruses  in  maritime  warfare.* 

In  view  of  the  fact  that  international  practice  permitted  the  use  of 
the  foreign  flag,  and  that  the  United  States  would  be  at  a  disadvan- 
tage if  they  should  renounce  the  employment  of  an  admitted  ruse 
de  guerre,  the  officers  were  of  the  opinion  "that  this  rule  should  be 
stricken  from  the  code  pending  some  international  agreement  upon 
the  use  of  false  colors." 

1  Mr.  Cass,  Secretary  of  State,  to  Mr.  Dallas,  Minister  to  England,  October  27, 
1860,  H.  Ex.  doc.  7,  36th  Cong.,  2d  sess.,  p.  505;  quoted  from  Moore,  International 
Law  Digest,  vol.  2,  p.  893. 

*  Naval  War  College,  International  Law  Discussions,  1903,  p.  37. 

3  Instructions,  United  States  Army,  1863,  art.  65;  Declaration  of  Brussels, 
art.  13;  Hague  Convention  Respecting  the  Laws  and  Customs  of  War  on  Land, 
art.  23. 

*  Naval  War  College,  International  Law  Discussions,   1903,  p.  41. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      199 

As  a  consequence  of  the  criticism  of  this  and  of  other  provisions 
of  the  Naval  Code,  the  Secretary  of  the  Navy  revoked  the  code  by 
General  Orders  150,  dated  February  4,  1904.  It  is  to  be  borne  in 
mind  that  this  conclusion  was  reached  exactly  a  decade  before  the 
outbreak  of  the  present  war,  and  that  there  has  been  no  international 
agreement  on  the  subject  during  the  interval. 

It  will  be  observed  that  the  American  officers  referred  to  Perels' 
Das  Internationale  Offentliclie  Seer  edit  der  Gegenwart,  a  second 
edition  of  which  appeared  in  1903.  This  is  a  standard  work,  the 
revised  edition  of  which  appeared  eleven  years  before  the  outbreak 
of  the  European  War,  and  it  is  peculiarly  deserving  of  considera- 
tion because  of  the  fact  that  its  author,  a  sound  international  lawyer, 
was  for  many  years  adviser  to  the  German  Admiralty.  On  this  sub- 
ject he  says: 

The  use  of  a  false  national  flag  in  naval  warfare  is  not  to 
be  regarded  as  forbidden  in  all  circumstances.  At  the  latest, 
with  the  opening  of  the  military  action  in  the  narrow  sense, 
that  is  to  say,  with  the  opening  of  battle  or  with  the  execution 
of  the  right  of  visit,  the  proper  national  flag  is  to  be  hoisted, 
and  during  the  action,  if  at  night,  the  flag  is  to  be  made  recog- 
nizable by  a  lantern  placed  above  it.^ 

This  distinguished  author  recognizes  the  right  of  vessels  of  war  to 
display  a  foreign  flag  in  order  the  more  conveniently  to  pursue  the 
enemy  and  to  lure  it  to  destruction,  but,  in  accordance  with  uni- 
versally recognized  practice  on  this  subject,  a  shot  should  not  be  fired 
nor  battle  engaged  without  flying  the  national  colors. 

It  is  difficult  to  see  how  the  enemy  is  to  be  deprived  of  the  right 
to  fly  a  foreign  flag  to  escape  attack  when  its  opponent  is  permitted 
the  employment  of  a  foreign  flag  to  make  attack,  and  it  is  difficult  to 
see  how  a  naval  commander,  whose  honor  is  supposed  to  be  infinitely 
superior  to  that  of  a  master  of  a  merchantman,  is  to  be  permitted  to 
fly  a  foreign  flag  to  steal  upon  his  enemy  and  the  master  is  to  be 
deprived  of  the  right  to  escape  by  the  use  of  false  colors  from  a  naval 
commander,  himself  approaching,  it  may  be,  under  false  colors. 
A  further  passage  should  be  quoted  from  Perels  which  should  have 
made  it  appear  to  the  German  authorities  very  difficult  indeed  for 
the  United  States  to  object  to  the  use  of  a  foreign  flag.     Thus: 

During  the  Spanish-American  War  of  1898  the  people  of 
Spain  were  greatly  aroused  by  the  fact  that,  on  May  22,  two 
American  warships,  flying  the  Spanish  flag,  had  put  into  Guan- 
'  Perels,  Das  Internationale  Offentliche  Seerecht  der  Oegenivart,  p.  182. 


200        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

tanamo  Bay  on  the  north  coast  of  Cuba,  After  the  matter  had 
been  discussed  in  the  Spanish  Senate  the  Spanish  cabinet  issued 
a  circular  note  to  the  neutral  Powers  protesting  against  the  use 
of  false  flags.' 

Dr.  Georg  Schramm  published  a  year  before  the  war  an  elaborate 
work  entitled  Bas  PrisenrecJit  in  Seiner  Neiiesten  Gestalt,  and  this 
work,  like  that  of  Perels,  is  entitled  to  very  great  respect  because 
of  the  fact  that  its  author  succeeded  Perels  as  adviser  to  the  German 
Admiralty.  The  younger  thus  confirms  the  statement  of  his  elder 
and  illustrious  predecessor: 

According  to  the  laws  of  war  the  regular  warships  are 
entitled  to  resort  to  war  ruses,  such  for  instance  as  the  flying 
of  a  false  national  flag.- 

After  quoting  with  approval  the  passage  already  quoted  in  the  text 
he  thus  continues: 

Accordingly,  even  regular  warships  may  conceal  their  true 
character  from  the  neutral  merchant  ships  as  long  as  they  deem 
this  necessary,  and  under  certain  circumstances  they  are  entitled 
to  disclose  themselves  as  enemy  warships  only  when  they  have 
reached  the  immediate  vicinity  of  the  neutral  merchant  ships 
they  are  to  stop  and  search.- 

In  accordance  with  the  views  of  Perels,  legal  adviser  to  the 
Admiralty  when  the  German  Prize  Ordinance  was  drafted  in  1909, 
and  in  accordance  with  the  view  of  Schramm,  adviser  to  the  Admir- 
alty when  the  ordinance  was  issued  on  August  3,  1914,  Article  82  of 
the  German  Prize  Ordinance  provides:  ''During  a  pursuit  the  war 
ensign  need  not  be  displayed,  and  the  use  of  any  merchant  flag  is 
permitted. ' ' " 

It  would  seem  that  it  should  have  been  as  difficult  for  the  Imperial 
German  Government  to  protest  to  the  United  States  against  the  use 
of  a  foreign  flag  as  it  was  for  the  United  States  to  insist  that  Great 
Britain  should  prevent  its  merchant  vessels  from  flying  a  foreign 
flag  in  order  to  avoid  certain  destruction  and  sudden  death  at 
the  hands  of  the   submarine.     Nevertheless,   the   Imperial   Govern- 

^  Perels,  Das  Internationale  Offentliche  Seerecht  der  Oegenwart,  p.  183. 

2  Schramm,  Das  Prisevrecht  in  Seiner  Neuesten  Gestalt,  Berlin,  1913,  p.  294. 

'Germany,  '  Prisenordnung,"  Reichsgesetsblntt,  1915,  pp.  275,  301,  314,  315; 
ibid.,  1915,  p.  193;  Prize  Code  of  the  Oerman  Empire  as  in  force  July  1,  1915. 
Translated  and  edited  by  Chas.  H.  Huberich  and  Richard  King  (New  York; 
Baker,  Voorhis  &  Co.,  1915),  pp.  50,  51. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      201 

ment  protested,  and,  because  of  the  use  of  foreign  flags,  justified  the 
resort  to  submarine  warfare ;  and  the  United  States,  notwithstanding 
its  use  of  foreign  flags  in  times  past  and  the  repeal  of  the  code  for- 
bidding the  use  of  foreign  flags,  protested  vigorously  against  the 
use  of  the  American  flag  by  British  merchantmen.  Consistency  was 
sacrificed  on  the  one  hand  to  military  necessity,  and  on  the  other 
to  the  desire  to  placate  an  enemy  which  had  not  as  yet  discarded 
the  mask  of  friendship. 

On  the  10th  of  February,  1915,  the  United  States,  reserving  *'for 
future  consideration  the  legality  and  propriety  of  the  deceptive  use 
of  the  flag  of  a  neutral  power  in  any  case  for  the  purpose  of  avoid- 
ing capture,"^  pointed  out  to  the  British  Government  the  serious 
consequences  which  might  "result  to  American  vessels  and  Ameri- 
can citizens  if  this  practice  is  continued. ' ' '  The  United  States 
accepted  it  as  true,  for  the  purposes  of  this  discussion,  that  the  cap- 
tain of  Tlie  Lusitania  had  raised  the  American  flag  pursuant  to 
orders  from  his  Government,  and  while  admitting  that  an  occa- 
sional use  might  be  justified,  nevertheless  insisted  that  frequent  use 
degenerating  into  a  practice  was  without  justification.     Thus: 

The  occasional  use  of  the  flag  of  a  neutral  or  an  enemy  under 
the  stress  of  immediate  pursuit  and  to  deceive  an  approaching 
enemy,  which  appears  by  the  press  reports  to  be  represented  as 
the  precedent  and  justification  used  to  support  this  action,  seems 
to  this  Government  a  very  different  thing  from  an  explicit  sanc- 
tion by  a  belligerent  government  for  its  merchant  ships  gener- 
ally to  fly  the  flag  of  a  neutral  power  within  certain  portions 
of  the  high  seas  which  are  presumed  to  be  frequented  with  hos- 
tile warships.  The  formal  declaration  of  such  a  policy  of  general 
misuse  of  a  neutral's  flag  jeopardizes  the  vessels  of  the  neutral 
visiting  those  waters  in  a  peculiar  degree  by  raising  the  pre- 
sumption that  they  are  of  belligerent  nationality  regardless  of 
the  flag  which  they  may  carry.^ 

The  reason  for  the  protest  is  placed  beyond  doubt  by  the  following 
paragraph  of  the  note : 

In  view  of  the  announced  purpose  of  the  German  Admiralty 
to  engage  in  active  naval  operations  in  certain  delimited  sea 
areas  adjacent  to  the  coasts  of  Great  Britain  and  Ireland,  the 
Government  of  the  United  States  would  view  with  anxious  solici- 

1  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  88. 

2  Ibid.,  p.  89. 


202        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

tude  any  general  use  of  the  flag  of  the  United  States  by  British 
vessels  traversing  those  waters.  A  policy  such  as  the  one  which 
His  Majesty's  Government  is  said  to  intend  to  adopt,  would,  if 
the  declaration  of  the  German  Admiralty  is  put  in  force,  it 
seems  clear,  afford  no  protection  to  British  vessels,  while  it  would 
be  a  serious  and  constant  menace  to  the  lives  and  vessels  of 
American  citizens/ 

The  United  States  therefore  trusted  that  Great  Britain  would  re- 
strain its  vessels  from  the  use  of  the  American  flag  within  the  area 
declared  by  Germany  to  be  a  war  zone,  and  indeed  went  so  far  as 
to  say  that  the  refusal  to  do  so  ''would  even  seem  to  impose  upon 
the  Government  of  Great  Britain  a  measure  of  responsibility  for  the 
loss  of  American  lives  and  vessels  in  case  of  an  attack  by  a  German 
naval  force. ' ' ' 

In  a  communication  of  February  16,  1915,  from  the  German 
Secretary  for  Foreign  Affairs,  the  Imperial  German  Government 
stated  that  the  British  Admiralty  "recommends  English  merchant 
vessels  to  use  neutral  flags  and  has  in  the  meantime  been  confirmed 
by  a  statement  of  the  British  Foreign  Office  which  refers  to  the 
municipal  law  of  England  and  characterizes  such  action  as  quite 
unobjectionable."  ^ 

On  February  19,  1915,  in  reply  to  the  American  note,  the  British 
Secretary  of  State  for  Foreign  Affairs  put  the  matter  in  its  true 
light  and  made  some  observations  which  could  not  have  been  palatable 
to  the  American  Government.  In  the  first  place,  the  note  thus  refers 
to  TJie  Lusitania,  showing  that  the  use  of  the  American  flag  was  not 
by  direction  of  the  British  authorities  but  at  the  request  of  Ameri- 
can passengers  traveling  upon  that  vessel : 

It  was  understood  that  the  German  Government  had  an- 
nounced their  intention  of  sinking  British  merchant  vessels  at 
sight  by  torpedoes  without  giving  any  opportunity  of  making  any 
provision  for  saving  the  lives  of  noncombatant  crews  and  pas- 
sengers. It  was  in  consequence  of  this  threat  that  The  Lusitania 
raised  the  United  States  flag  on  her  inward  voyage  and  on 
her  subsequent  outward  voyage.  A  request  was  made  by  the 
United  States  passengers  who  were  embarking  on  board  her  that 
the  United  States  flag  should  be  hoisted  presumably  to  insure 
their  safety.  Meanwhile  the  memorandum  from  Your  Excellency 
had  been  received.  His  Majesty's  Government  did  not  give  any 
advice  to  the  company  as  to  how  to  meet  this  request  and  it  is 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  89. 
2  Ibid.,  p.  94. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      203 

understood  that  TJie  Lusitania  left  Liverpool  under  the  British 
flag.^ 

As  to  the  British  law  on  the  subject,  he  said : 

The  British  merchant  shipping  act  makes  it  clear  that  the 
use  of  the  British  flag  by  foreign  merchant  vessels  is  permitted 
in  time  of  war  for  the  purpose  of  escaping  capture.  It  is  be- 
lieved that  in  the  case  of  some  other  nations  there  is  a  similar 
recognition  of  the  same  practice  with  regard  to  their  flags  and 
that  none  have  forbidden  it.  It  would  therefore  be  unreasonable 
to  expect  His  Majesty's  Government  to  pass  legislation  forbidding 
the  use  of  foreign  flags  by  British  merchant  vessels  to  avoid 
capture  by  the  enemy.  Now  that  the  German  Government  have 
announced  their  intention  to  sink  merchant  vessels  at  sight  with 
their  noncombatant  crews,  cargoes,  and  papers,  a  proceeding 
hitherto  regarded  by  the  opinion  of  the  world  not  as  war,  but 
as  piracy,  it  is  felt  that  the  United  States  Government  could 
not  fairly  ask  the  British  Government  to  order  British  mer- 
chant vessels  to  forego  the  means — always  hitherto  permitted — of 
escaping  not  only  capture  but  the  much  worse  fate  of  sinking 
and  destruction.  Great  Britain  has  always  when  neutral  accorded 
to  the  vessels  of  other  States  at  war  liberty  to  use  the  British 
flag  as  a  means  of  protection  against  capture,  and  instances  are 
on  record  when  United  States  vessels  availed  themselves  of  this 
facility  during  the  American  Civil  War.  It  would  be  contrary 
to  fair  expectation  if  now  when  the  conditions  are  reversed  the 
United  States  and  neutral  nations  were  to  grudge  to  British 
ships  liberty  to  take  similar  action.  The  British  Government 
have  no  intention  of  advising  their  merchant  shipping  to  use 
foreign  flags  as  general  practice  or  to  resort  to  them  otherwise 
than  for  escaping  capture  or  destruction.- 

The  British  legislation  to  which  reference  was  made  by  Germany 
appears  to  be  contained  in  Article  69  of  the  Merchant  Shipping  Act 
passed  in  1894,  which  punishes  the  use  of  the  British  flag  by  a 
vessel  not  entitled  to  fly  it  "unless  the  assumption  has  been  made 
for  the  purpose  of  escaping  capture  by  an  enemy  or  by  a  foreign 
ship  of  war  in  the  exercise  of  some  belligerent  right." 

The  British  Secretary  of  State  maintained  that  no  damage  would 
accrue  to  neutrals  and  no  advantage  would  be  lost  to  the  belligerent 
by  the  use  of  neutral  flags  if  visit  and  search,  as  recognized  and 
required  by  international  law,  were  followed  by  its  enemy.     Thus: 

*  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  96. 
2  Ibid.,  pp.  96-97. 


204        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

If  that  obligation  is  fulfilled,  hoisting  a  neutral  flag  on  board 
a  British  vessel  cannot  possibly  endanger  neutral  shipping  and 
the  British  Government  hold  that  if  loss  to  neutrals  is  caused 
by  disregard  of  this  obligation  it  is  upon  the  enemy  vessel  dis- 
regarding it  and  upon  the  Government  giving  orders  that  it 
should  be  disregarded  that  the  sole  responsibility  for  injury  to 
neutrals  ought  to  rest.' 

As  further  indicating  the  desire  of  the  United  States  to  remove 
from  Germany  any  pretext  for  unrestricted  submarine  warfare,  the 
United  States  proposed  in  its  note  of  February  20,  1915,  that  Ger- 
many and  Great  Britain  should  require  "their  respective  merchant 
vessels  not  to  use  neutral  flags  for  the  purpose  of  disguise  or  ruse 
de  guerre."-  This  proposition  was  part  of  a  general  scheme  to  avert 
the  horrors  of  submarine  warfare  which  has  already  been  discussed 
and  which,  it  will  be  recalled,  was  unacceptable  to  both  of  these 
countries. 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  97. 
2  Ibid.,  p.  98. 


CHAPTER   XII 
MINES,   WAR   ZONES,   AND   BLOCKADE 

It  is  an  admitted  right  of  a  belligerent,  deeply  imbedded  in  the 
practice  of  Nations,  for  which  authority  need  not  be  quoted,  to 
blockade  the  ports  and  the  coasts  of  the  enemy  provided  that  a  proc- 
lamation of  blockade  be  made,  that  the  fact  of  the  blockade  be  noti- 
fied to  neutral  Governments  or  that  neutral  Governments  to  be  taxed 
with  its  provisions  have  notice  of  the  blockade,  that  the  blockading 
force  be  employed  within  the  vicinity  of  the  coast  of  the  blockaded 
ports,  either  to  prevent  vessels  from  entering  and  from  leaving  the 
blockaded  region  or  making  the  entry  and  departure  of  such  vessels 
dangerous,  that  the  blockade  be  applied  impartially  to  all  nations  and 
not  relaxed  in  the  case  of  any  one  or  more ;  and  provided  further  and 
always,  that  neutral  countries  be  not  directly  or  indirectly  blockaded 
by  a  belligerent.  Blockade  applies  solely  to  trade  entering  or  depart- 
ing from  belligerent  territory.  Trade  seeking  to  enter  the  territory 
of  the  enemy  through  a  neutral  country  is  subject  to  confiscation 
if  it  be  contraband  and  seized  in  accordance  with  the  methods  in  such 
cases  made  and  provided.  Just  as  communication  may  be  closed  by 
investment  on  land,  so  communication  may  be  shut  off  by  blockade 
by  water,  and  indeed  a  port  may  be  at  one  and  the  same  time  invested 
by  land  and  blockaded  by  sea.  The  purpose  in  each  case  is  the  same : 
to  starve  the  enemy  into  submission.  Famine  is  a  weapon,  used  alike 
in  land  and  naval  warfare,  for  it  is  the  experience  of  mankind,  recog- 
nized by  nations  and  therefore  incorporated  in  the  law  of  nations, 
that  an  army  never  fights  upon  an  empty  stomach.  To  deprive  the 
army  of  sustenance  is  therefore  legitimate ;  and  to  starve  the  civilian 
population  in  order  that  by  such  starvation  the  army  shall  sur- 
render (as  in  the  case  of  Lee's  surrender  at  Appomattox)  is  the 
endeavor  of  every  belligerent,  commended  by  the  victor  and  de- 
nounced by  the  victim. 

It  may  be  said,  before  taking  up  the  matter  of  the  war  zone,  that 
the  United  States  labored  with  Great  Britain  to  prevent  the  scatter- 
ing of  mines  to  which  Germany  had  already  resorted  and  which  was 
the  cause  alleged  by  Great  Britain  for  making  a  war  zone  of  the 

205 


206        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

North  Sea ;  and  before  further  proceeding  it  should  be  mentioned  that 
the  United  States,  on  February  19,  1917,  before  the  outbreak  of  war 
with  Germany  and  while  it  was  still  hoped  that  war  might  be  averted, 
in  a  formal  note  to  the  British  Ambassador,  called  attention  to  the 
Department's  memorandum  of  August  13,  1914,  and  the  subsequent 
correspondence  between  Great  Britain  and  the  United  States,  and 
then  squarely  and  unequivocally  protested  against  the  action  of 
Great  Britain  in  the  following  language: 

As  the  question  of  appropriating  certain  portions  of  the 
high  seas  for  military  operations,  to  the  exclusion  of  the  use 
of  the  hostile  area  as  a  common  highway  of  commerce,  has  not 
become  a  settled  principle  of  international  law  assented  to  by  the 
family  of  nations,  it  will  be  recognized  that  the  Government  of 
the  United  States  must,  and  hereby  does,  for  the  protection  of 
American  interests,  reserve  generally  all  of  its  rights  in  the 
premises,  including  the  right  not  only  to  question  the  validity  of 
these  measures,  but  to  present  demands  and  claims  in  relation 
to  any  American  interests  which  may  be  unlawfully  affected, 
directly  or  indirectly,  by  virtue  of  the  enforcement  of  these 
measures.^ 

First,  as  to  the  matter  of  mines.  On  August  7,  1914,  that  is  to 
say,  three  days  after  the  outbreak  of  war  between  Germany  and 
Great  Britain,  the  American  Ambassador  to  Berlin  reported  that 
"he  is  informed  by  the  German  Foreign  Office  that  German  ports 
are  strewn  with  mines,"  and  the  Foreign  Office  requested  "that 
timely  warning  be  given  shippers  against  navigating  in  ports  which 
foreign  forces  might  use  as  bases."  On  the  11th  of  August  the 
British  Embassy  informed  the  Department  of  State  that  "The  Ger- 
mans are  scattering  contact  mines  indiscriminately  about  the  North 
Sea  in  the  open  sea  without  regard  to  the  consequences  to  mer- 
chantmen" and  that  "in  view  of  the  methods  adopted  by  Germany 
the  British  Admiralty  must  hold  themselves  fully  at  liberty  to  adopt 
similar  measures  in  self-defense  which  must  inevitably  increase  the 
dangers  to  navigation  in  the  North  Sea.  But,  before  doing  so,  they 
think  it  right  to  issue  this  warning  in  order  that  merchant  ships 
under  neutral  flags  trading  with  North  Sea  ports  should  be  turned 
back  before  entering  the  area  of  such  exceptional  danger. ' '  ^ 

In  reply  to  this  memorandum  the  Department  of  State,  on  the 

*  United  States,  Department  of  State,  Papers  Relating  to  Maritime  Danger 
Zones,  etc.  (April  4,  1917),  pp.  33-34. 
a  Ibid.,  p.  6. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      207 

13th  of  August,  used  language  which  foreshadows  the  issue  raised 
by  the  United  States  of  the  freedom  of  the  seas.    Thus: 

The  Secretary  of  State  is  loath  to  believe  that  a  signatory 
to  that  Convention  [Hague  Convention  of  1907  relative  to  the 
Laying  of  Automatic  Submarine  Contact  Mines]  would  willfully 
disregard  its  treaty  obligation,  which  was  manifestly  made  in 
the  interest  of  neutral  shipping. 

All  restrictions  upon  the  rights  of  neutrals  upon  the  high 
seas,  the  common  highway  of  nations,  during  the  progress  of 
a  war,  are  permitted  in  the  interests  of  the  belligerents,  who 
are  bound  in  return  to  prevent  their  hostile  operations  from 
increasing  the  hazard  of  neutral  ships  in  the  open  sea  so  far  as 
the  exigencies  of  the  war  permit.^ 

After  this  statement  of  the  principle,  the  memorandum  made  a  per- 
sonal appeal  to  the  British  Government,  which  seems  greatly  to  have 
impressed  it.    Thus,  the  memorandum  continues  and  concludes: 

If  an  enemy  of  His  Majesty's  Government  has,  as  asserted, 
endangered  neutral  commerce  by  an  act  in  violation  of  The 
Hague  Convention,  which  cannot  be  justified  on  the  ground  of 
military  necessity,  the  Secretary  of  State  perceives  no  reason 
for  His  Majesty's  Government  adopting  a  similar  course,  which 
would  add  further  dangers  to  the  peaceful  navigation  of  the 
high  seas  by  vessels  of  neutral  powers. 

The  Secretary  of  State,  therefore,  expresses  the  earnest  and 
confident  hope  that  His  Majesty's  Government  may  not  feel  com- 
pelled to  resort,  as  a  defensive  measure,  to  a  method  of  naval 
warfare  which  would  appear  to  be  contrary  to  the  terms  of 
The  Hague  Convention  and  impose  upon  the  ships  and  lives  of 
neutrals  a  needless  menace  when  peaceably  navigating  the  high 
seas.' 

In  a  memorandum  of  August  19th,  the  British  Embassy  took 
notice  in  the  following  terms  of  the  hope  expressed  by  the  United 
States  that  Great  Britain  would  not  resort  to  the  laying  of  mines, 
saying  on  this  point: 

His  Majesty's  Government  share  the  reluctance  of  the  Sec- 
retary of  State  to  see  the  practice  extended  and  the  danger  to 
neutral  shipping  increased.  At  the  same  time  His  Majesty's 
Charge  d 'Affaires  is  instructed  to  point  out  that  if  Great  Britain 
refrains  from  adopting  the  methods  of  Germany  the  result  is 
that  Germany  receives  impunity  unless  the  neutral  Powers  can 

^  United  States,  Department  of  State,  Papers  Relating  to  Maritime  Danger 
Zones,  etc.    (April  4,  1917),  p.  7. 


208        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

find  some  means  of  making  Germany  feel  that  she  cannot  continue 
to  preserve  all  facilities  for  receiving  trade  and  supplies  through 
neutral  shipping  while  impeding  British  commerce  by  means 
the  use  of  which  by  Great  Britain  is  deprecated  by  the  United 
States  Government.' 

In  a  memorandum  of  the  23d  of  August  the  British  Embassy 
pointed  out  the  danger  of  traveling  in  the  North  Sea  and  called  the 
attention  of  neutral  shipping  to  "the  vital  importance  of  touching 
at  British  ports  before  entering  the  North  Sea  in  order  to  ascertain 
according  to  the  latest  information  the  routes  and  channels  which 
the  Admiralty  are  keeping  swept  and  along  which  these  dangers  to 
neutrals  and  merchantmen  are  reduced  as  far  as  possible."^  The 
memorandum  closes  with  the  following  statement: 

The  Admiralty,  while  reserving  to  themselves  the  utmost 
liberty  of  retaliatory  action  against  this  new  form  of  warfare, 
announce  that  they  have  not  so  far  laid  any  mines  during  the 
present  war  and  that  they  are  endeavouring  to  keep  the  sea 
routes  open  for  peaceful  commerce.^ 

On  September  10,  1914,  the  German  Ambassador  notified  the 
Secretary  of  State  that  "the  assertions  from  England  that  the  North 
Sea  has  been  infested  with  mines  by  Germany  are  wrong";  that 
"neutral  vessels  bound  for  German  ports  in  the  North  Sea  must  steer 
by  day  for  a  point  ten  nautical  miles  N.W.  off  Helgoland";  and 
that  pilots  were  there  to  be  found  "in  readiness  to  pilot  the  ships 
into  port. ' '  ^ 

On  September  26,  1914,  the  British  Government  delivered  a  care- 
fully prepared  memorandum  regarding  the  laying  of  mines  by  Ger- 
many, which  it  declared  to  be  in  violation  of  The  Hague  Convention 
relating  to  the  laying  of  submarine  contact  mines.  It  should  be  said, 
however,  that  Article  7  of  this  Convention  contains  the  clause  that  its 
provisions  only  apply  if  all  of  the  belligerents  are  contracting  parties, 
and  that  Servia,  with  which  Germany  was  at  war,  was  not  a  con- 
tracting party.  Nevertheless,  it  is  fair  to  invoke  the  provisions  of 
this  Convention  as  stating  the  convictions  of  the  Powers  in  a  time 
of  profound  peace  as  to  the  conduct  which  should  be  pursued  if  they 
should  be  at  war,  and  it  is  perhaps  proper  to  remark  in  this  con- 
nection that  Servia,  the  only  non-contracting  Power  then  at  war, 

'  United  States,  Department  of  State,  Papers  Relating  to  Maritime  Danger 
Zones,  etc.  (April  4,  1917),  p.  8. 

-^Ihid.,  p.  9.  »/6id.,  p.  10. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     209 

was,  like  Switzerland  and  Bolivia,  an  inland  country  without  an  out- 
let to  the  sea.  It  was  felt  at  the  Second  Conference  that  the  sowing 
of  mines  interfered  seriously  with  the  freedom  of  the  seas,  and  the 
learned  reporter  of  the  Commission,  Mr.  Georges  Streit,  then  pro- 
fessor of  international  law  at  the  University  of  Athens,  and  later 
Greek  Minister  to  Vienna  and  Minister  of  Foreign  Affairs  of  his 
country,  said  in  his  report  to  the  Conference  on  the  matter  of  mines, 
that  "even  apart  from  any  written  stipulation,  it  can  never  fail 
to  be  present  in  the  minds  of  all  that  the  principle  of  the  liberty  of 
the  seas,  with  the  obligations  which  it  implies  on  behalf  of  those  who 
make  use  of  this  way  of  communication  open  to  the  Nations,  is  the 
indisputable  prerogative  of  the  human  race."^  The  preamble  to  the 
Convention  declares  the  contracting  Powers  as  ' '  inspired  by  the  prin- 
ciple of  the  freedom  of  sea  routes,  the  common  highway  of  all 
Nations,"  and  as  ''seeing  that,  although  the  existing  position  of 
affairs  makes  it  impossible  to  forbid  the  employment  of  automatic 
submarine  contact  mines,  it  is  nevertheless  desirable  to  restrict  and 
regulate  their  employment  in  order  to  mitigate  the  severity  of  war 
and  to  insure,  as  far  as  possible,  to  peaceful  navigation  the  security 
to  which  it  is  entitled,  despite  the  existence  of  war."  After  this 
declaration  of  the  principles  by  which  the  delegates  were  guided,  the 
Convention  itself  thus  reads : 

Article  1.    It  is  forbidden — 

1.  To  lay  unanchored  automatic  contact  mines,  except  when 
they  are  so  constructed  as  to  become  harmless  one  hour  at  most 
after  the  person  who  laid  them  ceases  to  control  them; 

2.  To  lay  anchored  automatic  contact  mines  which  do  not 
become  harmless  as  soon  as  they  have  broken  loose  from  their 
moorings ; 

3.  To  use  torpedoes  which  do  not  become  harmless  when  they 
have  missed  their  mark. 

Article  2.  It  is  forbidden  to  lay  automatic  contact  mines  off 
the  coast  and  ports  of  the  enemy,  with  the  sole  object  of  inter- 
cepting commercial  shipping. 

Article  3.  When  anchored  automatic  contact  mines  are  em- 
ployed, every  possible  precaution  must  be  taken  for  the  security 
of  peaceful  shipping. 

The  belligerents  undertake  to  do  their  utmost  to  render  these 
mines  harmless  within  a  limited  time,  and,  should  they  cease 
to  be  under  surveillance,  to  notify  the  danger  zones  as  soon  as 

^  Deuxidme  Conference  de  la  Paix,  Actes  et  Documents,  tome  i,  p.  289 ;  Reports 
to  The  Hague  Conferences  of  1899  and  1907    (1917),  p.  650. 


210        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

military  exigencies  permit,  by  a  notice  addressed  to  ship  owners, 
which  must  also  be  communicated  to  the  Governments  through 
the  diplomatic  channel/ 

There  was  perhaps  no  subject  more  hotly  debated  at  the  Second 
Hague  Peace  Conference  than  that  of  mines  and  the  debate  became 
the  occasion  of  an  exchange  of  personalities  between  the  British  and 
German  delegates.  Great  Britain  wished  to  prevent  the  use  of  mines 
and  invoked  in  its  behalf  the  freedom  of  the  seas  and  the  principles 
of  humanity.  Baron  Marschall  von  Bieberstein  said  on  behalf  of 
Germany : 

We  do  not  intend,  if  I  may  use  an  expression  employed  by 
the  British  delegate,  "to  sow  mines  in  profusion  on  every  sea." 
.  .  .  We  do  not  hold  the  opinion  that  everything  which  is  not 
expressly  forbidden  is  permitted.^ 

In  the  course  of  the  Conference  the  Baron  Marschall  further  stated 
that: 

A  belligerent  who  lays  mines  assumes  a  very  heavy  respon- 
sibility toward  neutrals  and  peaceful  shipping.  ...  No  one 
will  resort  to  such  means  unless  for  military  reasons  of  an  abso- 
lutely urgent  character.  But  military  acts  are  not  governed 
solely  by  principles  of  international  law.  There  are  other  factors : 
conscience,  good  sense,  and  the  sentiment  of  duty  imposed  by 
principles  of  humanity  will  be  the  surest  guides  for  the  con- 
duct of  sailors,  and  will  constitute  the  most  effective  guarantee 
against  abuses.  The  officers  of  the  German  Navy,  I  emphatically 
affirm,  will  always  fulfil,  in  the  strictest  fashion,  the  duties  which 
emanate  from  the  unwritten  law  of  humanity  and  civilisation.' 

On  October  2,  1914,  the  British  Government  decided  to  lay  mines, 
alleging  that  this  was  necessary  on  military  grounds  to  counteract 
"the  German  policy  of  mine  laying  combined  with  their  submarine 
activities."    In  a  telegram  of  this  date,  Sir  Edward  Grey  said  that: 

His  Majesty's  Government  have  therefore  authorized  a  mine- 
laying  policy  in  certain  areas  and  a  system  of  minefields  has 
been  established  and  is  being  developed  upon  a  considerable 
scale.  In  order  to  reduce  risks  to  noncombatants  the  Admiralty 
announce  that  it  is  dangerous  henceforward  for  ships  to  cross 
area  between  Latitude  51  degrees  15  minutes  north  and  51  degrees. 

*  The  Hague  Conventions  and  Declarations  of  1899  and  1907,  pp.  151-152. 
2  United  States,  Department  of  State,  Papefs  Relating  to  Maritime  Da/nger 
Zones,  etc.   (April  4,  1917),  p.  11. 
'/6id.,  p.  12. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      211 

40  minutes  north  and  Longitude  1  degree  35  minutes  east  and 
3  degrees  east.  In  this  connection  it  must  be  remembered  that 
the  southern  limit  of  the  German  minefield  is  latitude  52  degrees 
north.  Although  these  limits  are  assigned  to  the  danger  area 
it  must  not  be  supposed  that  navigation  is  safe  in  any  part  of 
the  southern  waters  of  the  North  Sea.  Instructions  have  been 
issued  to  His  Majesty's  ships  to  warn  east-going  vessels  of  the 
presence  of  this  new  minefield.^ 

On  November  3,  1914,  alleging  still  further  activity  on  the  part 
of  the  Germans  in  the  matter  of  mines,  the  British  Government  gave 
notice  that  "the  whole  of  the  North  Sea  must  be  considered  a  mili- 
tary area.  Within  this  area  merchant  shipping  of  all  kinds,  traders 
of  all  countries,  fishing  craft,  and  all  other  vessels  will  be  exposed  to 
the  gravest  dangers  from  mines  which  it  has  been  necessary  to  lay 
and  from  warships  searching  vigilantly  by  night  and  day  for  sus- 
picious craft. "  ^  It  should  be  said  in  connection  with  this  notice  that 
the  British  Government  advised  all  neutral  shipping  destined  to  or 
from  Norway,  the  Baltic,  Denmark,  and  Holland  to  enter  the  English 
Channel  by  the  Straits  of  Dover,  where  they  would  be  given  sailing 
instructions  which,  if  followed,  "would  pass  them  safely  so  far  as 
Great  Britain  is  concerned." 

On  November  7th  Germany  delivered  a  memorandum  to  the  Ameri- 
can Ambassador  to  be  transmitted  to  the  United  States,  in  reply  to 
the  protest  of  the  British  Government  against  the  laying  of  German 
mines.  In  the  opening  paragraphs  of  this  memorandum  Germany 
calls  attention  to  the  fact  that  the  mine  Convention  was  not  appli- 
cable, but  that  Germany  nevertheless  had  held  itself  bound  by  its 
provisions.  It  does  not  deny  that  it  has  laid  mines,  but  claims  that 
they  were  laid  in  accordance  with  the  provisions  of  the  Convention, 
that  neutral  trade  routes  had  not  been  blocked,  that  no  German  mines 
had  been  laid  in  a  trade  route  from  the  high  seas  to  a  neutral  port, 
and  that  it  gave  notice  to  the  neutral  Powers.  The  German  reply, 
however,  has  two  paragraphs  in  the  nature  of  an  admission.     Thus: 

3.  The  British  protest  maintains  further  that  in  numerous 
cases  German  mines  were  found  adrift  without  having  become 
harmless.  The  anchoring  of  mines  by  Germany  has  been  carried 
out  with  all  possible  precaution.  If  some  have  drifted  from 
their  moorings  in  consequence  of  currents  or  storms  their  num- 
ber is  certainly  much  smaller  than  that  of  mines  laid  by  England, 

*  United  States,  Department  of  State,  Papers  Relating  to  Maritime  Danger 
Zones,  etc.    (April  4,  1917),  p.  12. 
="  Hid.,  p.  15. 


212        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

which  have  drifted  ashore  on  the  Belgian  and  Dutch  coasts  and 
have  caused  damage  there  through  their  undiminished  explosive 
power. 

4.  The  obligation  of  keeping  mines  under  surveillance  which 
the  British  Government  complains  has  been  violated  can  naturally 
be  enjoined  upon  a  belligerent  only  as  long  as  he  retains  com- 
mand over  that  part  of  the  seat  of  war  where  he  has  laid  mines 
in  a  manner  permitted  by  international  law.  As  a  rule  therefore 
this  obligation  will  apply  only  to  defensive  mines,  but  not  to 
offensive  mines.  When  a  belligerent  has  properly  laid  offensive 
mines  and  has  duly  notified  their  laying  he  is  relieved  of  all 
further  responsibility/ 

The  German  proclamation  of  February  4,  1915,  declared  "the 
waters  surrounding  Great  Britain  and  Ireland  including  the  whole 
English  Channel  .  .  .  to  be  war  zone."^  The  proclamation,  to 
go  into  effect  on  February  18,  1915,  was  to  apply  primarily  to  British 
ships,  public  or  private,  found  within  the  proscribed  zone,  and  to 
neutral  ships,  their  passengers,  crews,  and  cargoes,  unless  they  could 
be  distinguished  from  enemy  ships  by  the  submarine,  which  was 
declared  to  be  the  means  of  rendering  this  proclamation  effective. 
This  is  a  blockade  in  effect,  although  the  proclamation  does  not 
specifically  term  it  a  blockade. 

Hitherto  portions  of  a  coast  have  been  blockaded.  The  largest 
blockade  rendered  effective  appears  to  have  been  the  blockade  of  the 
coast  of  the  Confederate  States,  extending  from  Delaware  to  Mexico, 
a  distance  of  some  2,200  miles.  To  render  this  blockade  effective, 
surface  ships,  the  known  and  tried  agencies,  were  used.  It  was  not 
effective  to  begin  with ;  it  became  more  and  more  effective  with  time 
and  it  ended  by  bottling  up  the  Confederacy.  The  blockade  of  the 
United  Kingdom  of  Great  Britain  and  Ireland  was  to  be  made  effec- 
tive by  a  new  weapon,  the  submarine. 

It  was  anticipated  that  the  submarine  would  cause  damage  to 
neutrals,  a  fact  pointed  out  in  the  proclamation  of  February  4,  1915, 
and  admitted  to  have  been  the  case  in  the  memorandum  received  by 
the  Department  of  State  March  8,  1916,  after  a  very  considerable 
experience  with  the  new  weapon.     The  memorandum  stated: 

The  use  of  the  submarine  naturally  necessitated  a  restriction 
of  the  free  movements  of  neutrals  and  constituted  a  danger  for 
them  which  Germany  intended  to  ward  off  by  a  special  warning 

'■  United  States,  Department  of  State,  Papers  Relating  to  Maritime  Danger 
Zones,  etc.    (April  4,  1917),  p.  17. 

-  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,    1915,   p.   83. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      213 

analogous  to  the  warning  England  had   given  regarding  the 
North  Sea.^ 

This  passage  is  of  very  considerable  importance,  as  it  is  an  admis- 
sion, after  months  of  practice,  that  the  use  of  the  submarine  necessi- 
tated the  restriction  of  the  free  movements  of  neutrals  and  constituted 
a  danger  for  them.  It  is  of  importance  for  a  further  reason,  as  the 
reference  to  the  North  Sea  seems  to  be  a  confirmation  of  the  state- 
ment in  the  proclamation  of  February  4,  1915,  that  the  declaration 
of  the  war  zone  was  due  to  the  action  of  Great  Britain  in  making 
of  the  North  Sea  a  military  area.  Without  quoting  the  British  dec- 
laration, it  is  sufficient  for  present  purposes  to  quote  the  memorandum 
accompanying  the  German  proclamation  of  February  4,  1915,  which 
in  this  matter  is  a  statement  of  British  action  and  an  interpretation 
of  its  consequences  set  forth  as  a  justification  of  Germany's  act. 
Thus: 

Finally,  they  [Great  Britain]  have  declared  the  North  Sea 
in  its  whole  extent  to  be  the  seat  of  war,  thereby  rendering  diffi- 
cult and  extremely  dangerous,  if  not  impossible,  all  navigation 
on  the  high  seas  between  Scotland  and  Norway,  so  that  they  have 
in  a  way  established  a  blockade  of  neutral  coasts  and  ports, 
which  is  contrary  to  the  elementary  principles  of  generally 
accepted  international  law.^ 

It  is  not  material  to  the  present  question  to  consider  whether 
the  action  of  Great  Britain  in  declaring  the  North  Sea  to  be  a  mili- 
tary area  did  or  did  not  in  law  or  in  fact  blockade  Germany  or 
neutral  ports  and  coasts,  as  Germany's  contention  was  that  the  action 
of  Great  Britain,  whatever  its  nature,  was  illegal  and  therefore  a 
justification  of  Germany's  act  in  declaring  the  waters  surround- 
ing the  United  Kingdom  a  war  zone  and  in  a  state  of  blockade. 
It  may  be  pointed  out  in  passing  that  the  essential  difference  between 
the  two  is  that  the  British  warning  apparently  prevented  an  indis- 
criminate sinking  of  neutral  vessels  and  the  loss  of  neutral  passen- 
gers, crews,  and  cargoes,  whereas  neutral  passengers,  crews,  and 
cargoes  were  indiscriminately  sacrificed  by  the  danger  attending 
submarine  warfare  "which  Germany  intended  to  ward  off  by  a 
special  warning  analogous  to  the  warning  England  had  given  regard- 
ing the  North  Sea."    Without  indulging  in  further  comment  on  this 

'  Official  text,  American  Journal  of  International  Laic,  Special  Supplement, 
October,  1916,  p.  179. 

2 /bid.,  July,  1915,  p.  84. 


214        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

point,  the  warning  seems  to  have  been  effective  in  the  one  case  and 
ineffective  in  the  other. 

Whether  the  action  of  Great  Britain  in  sowing  the  North  Sea 
with  mines,  thus  making  of  it  a  military  area,  was  or  was  not  a 
blockade  of  German  ports  or  of  neutral  ports  and  coasts,  it  was 
never  concurred  in  by  the  United  States  and  it  was  declared  to  be 
illegal  in  Secretary  Lansing's  note  to  the  British  Ambassador  dated 
February  19,  1917,  which  has  been  previously  quoted.  The  United 
States,  therefore,  is  not  to  be  taken  as  acquiescing  in  the  action  of 
Great  Britain  in  making  of  the  North  Sea  military  or  dangerous  areas. 

The  Order  in  Council  of  March  15,  1915,  subjecting  trade  with 
Germany,  directly  or  indirectly,  through  neutral  countries  to  re- 
strictions imposed  by  Great  Britain  was  declared  by  the  British 
Secretary  of  State  for  Foreign  Affairs  to  be  a  blockade.  The  blockade 
was  declared  by  Germany  to  be  inegal,  and,  in  the  memorandum  of 
the  Imperial  German  Ambassador  of  March  8,  1916,  was  cited  in 
justification  of  the  blockade  of  Great  Britain  by  the  submarine.  The 
United  States  cannot  be  taxed  with  acquiescence  in  the  action  of 
Great  Britain  in  this  matter,  because,  in  an  elaborate  and  carefully 
reasoned  note  to  Great  Britain,  dated  October  21,  1915,  Secretary 
Lansing,  after  examining  the  contentions  of  the  British  Govern- 
ment, notified  that  Government  that  "the  blockade,  which  they 
claim  to  have  instituted  under  the  Order  in  Council  of  March  11, 
cannot  be  recognized  as  a  legal  blockade  by  the  United  States,"^ 

"We  thus  have  the  following  situation :  The  Imperial  German  Gov-' 
ernment  alleged  that  making  of  the  North  Sea  a  military  area  was 
in  effect  a  blockade  and  was  doubly  illegal  as  it  was  a  misuse  of  the 
high  seas  and  an  unlawful  interference  with  the  rights  of  neutrals. 
The  British  Government  maintained  that  making  a  war  zone  of  the 
waters  surrounding  the  United  Kingdom  was  illegal,  as  was  also 
the  employment  of  the  submarine  within  those  waters,  and  that 
Great  Britain  and  its  Allies  were  justified  in  retaliation  to  issue  the 
order  of  blockade  of  March  11,  1915,  which  action  on  the  part  of 
Great  Britain  and  its  Allies  the  United  States  pronounced  to  be 
illegal.  In  a  note  of  March  1,  1915,  Great  Britain  sought  to  justify 
to  the  United  States  the  measures  which  it  subsequently  took  in  the 
Order  in  Council  of  March  11,  1915,  as  follows: 

Germany  is  adopting  these  methods  [of  submarine  warfare] 
against    peaceful    traders    and    noneombatant    crews    with    the 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  82-83. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      215 

avowed  object  of  preventing  commodities  of  all  kinds,  including 
food  for  the  civil  population,  from  reaching  or  leaving  the  British 
Isles  or  northern  France. 

Her  opponents  are  therefore  driven  to  frame  retaliatory 
measures  in  order  in  their  turn  to  prevent  commodities  of  any 
kind  from  reaching  or  leaving  Germany.  These  measures  will, 
however,  be  enforced  by  the  British  and  French  Governments 
without  risk  to  neutral  ships  or  to  neutral  or  noncombatant  life 
and  in  strict  observance  of  the  dictates  of  humanity.' 

Admitting,  for  the  purposes  of  argument,  the  right  of  a  belliger- 
ent to  devise  and  to  put  into  effect  measures  by  way  of  retaliation 
or  reprisal  in  so  far  as  they  concern  merely  the  enemy,  it  cannot 
be  admitted  and  it  was  not  admitted  by  the  United  States  that  a 
belligerent  could  indulge  in  retaliation  and  reprisals  which  wounded 
the  neutral  over  the  shoulder  of  th€  enemy. 

'  Ofl5cial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  102. 


CHAPTER   XIII 

STATUS    OF    MERCHANT    VESSELS 

Section  1.    The  Right  of  Merchant  Vessels  to  Arm 

The  contention  has  been  repeatedly  advanced  in  the  course  of 
the  present  war  that  the  presence  of  armament  on  board  a  belliger- 
ent merchantman,  and  in  a  lesser  degree  upon  a  neutral  merchant- 
man, deprives  the  vessel  of  the  right  to  be  treated  as  an  ordinary- 
merchant  vessel;  that  the  presence  of  an  armament,  although  for 
defensive  purposes,  changes  the  rule  of  law  and  renders  the  vessel 
liable  to  destruction  as  an  enemy  cruiser,  without  warning,  visit, 
and  search,  and  without  removing  the  officers,  crew,  and  passengers, 
and  if  possible  their  effects,  from  the  vessel  before  destruction.  It  has 
been  further  contended  that  it  is  the  duty  of  a  belligerent  merchant 
vessel  to  submit  to  the  visit  and  search  of  an  enemy  cruiser,  that 
it  has  neither  the  right  to  defend  itself  aggressively  nor  by  flight. 
This  contention  finds  no  justification  in  practice  if  we  have  in 
mind  vessels  hitherto  employed  in  maritime  warfare.  It  has  also 
been  contended  that  a  neutral  merchantman  with  armament  is  not  to 
be  considered  as  an  ordinary  merchantman  because  it  is  in  a  posi- 
tion to  resist  visit  and  search,  and  that  if  it  can  it  probably  will, 
with  resultant  danger  to  the  belligerent  vessel.  But  it  may  also  be 
said  that  this  danger  has  not  heretofore  deprived  vessels  of  the  kind 
hitherto  employed  in  maritime  warfare  from  complying  with  the 
requirements  of  visit  and  search.  Each  of  these  classes  of  vessels 
will  be  considered  in  turn. 

It  would  be  easy  to  show  that  in  times  past  merchantmen  were 
in  the  habit  of  carrying  arms  for  their  defense  upon  the  high  seas 
and  that  the  mere  presence  of  arms  on  board  did  not  convert  the 
vessel  carrying  them  into  a  privateer,  that  is,  into  a  vessel  owned  by 
private  persons  and  authorized  by  a  Government  to  engage  in  hostili- 
ties for  private  gain.  Indeed,  it  has  been  held  and  affirmed,  after 
great  consideration,  by  the  Supreme  Court  of  the  United  States  in  the 
case  of  Tlie  Nereide,  confirmed  on  appeal  in  the  case  of  Tlie  Atlanta, 
that  a  belligerent  vessel  was  entitled  to  arm  in  its  own  defense  and 

216 


A  SURVEY  OF  INTERNATIONAL  RELATIONS         217 

ordinarily  did  so;  that  it  was  not  only  entitled  as  of  right  to  resist, 
but  that  it  was  its  duty  to  resist  capture  at  the  hands  of  its  enemy ; 
that,  being  its  right  to  resist,  it  forfeited  nothing  of  its  right  by  its 
unsuccessful  resistance ;  that  if  its  resistance  were  overcome,  it  would 
be  treated  as  a  capture  of  an  ordinary  merchant  vessel  which  had 
not  resisted;  that  a  neutral  could  intrust  his  person  and  his  prop- 
erty to  such  a  vessel  and  that  neither  he  nor  his  property  was  affected 
by  the  resistance  of  the  vessel,  unless  he  took  part  in  such  resistance. 
This  opinion  was  not  the  view  of  a  scholarly  publicist,  but  of  a  judge 
upon  the  bench;  it  was  not  merely  the  view  of  one  judge,  but  of  a 
majority  of  the  Court,  and  the  judgment  of  the  Court  and  the  opinion 
justifying  it  bear  the  name  of  Marshall  and  the  impress  of  his  intel- 
lectual supremacy. 

The  opinion  of  Chief  Justice  Marshall  in  this  case  was  not  inci- 
dental to  the  judgment  of  the  Court.  It  was  involved  in  the  judg- 
ment; indeed,  it  was  the  judgment. 

A  belligerent  has  a  perfect  right  to  arm  in  his  own  defense; 
and  a  neutral  has  a  perfect  right  to  transport  his  goods  in  a 
belligerent  vessel.  These  rights  do  not  interfere  with  each  other. 
The  neutral  has  no  control  over  the  belligerent  right  to  arm — 
ought  he  to  be  accountable  for  the  exercise  of  it?  By  placing 
neutral  property  in  a  belligerent  ship,  that  property,  according 
to  the  positive  rules  of  law,  does  not  cease  to  be  neutral.  Why 
should  it  be  changed,  by  the  exercise  of  a  belligerent  right, 
universally  acknowledged,  and  in  common  use  when  the  rule  was 
laid  down,  and  over  which  the  neutral  had  no  control  ?  ^ 

The  Chief  Justice,  who  had  been  Secretary  of  State  and  left  the 
Foreign  Office  for  the  bench,  was  of  course  aware  that  the  belligerent 
would  object  to  the  arming  of  the  merchant  vessels  of  the  enemy,  as 
the  presence  of  armament  would  make  them  more  difficult  to  capture, 
and  indeed  might  enable  them  to  elude  capture  altogether.  Con- 
sidering this  question,  Chief  Justice  Marshall  said: 

The  belligerent  answers,  that  by  arming,  his  rights  are  im- 
paired. By  placing  his  goods  under  the  guns  of  an  enemy,  the 
neutral  has  taken  part  with  the  enemy,  and  assumed  the  hostile 
character.  Previous  to  that  examination  which  the  Court  has 
been  able  to  make  of  the  reasoning  by  which  this  proposition  is 
sustained,  one  remark  will  be  made,  which  applies  to  a  great  part 
of  it.  The  argument  which,  taken  in  its  fair  sense,  would  prove 
that  it  is  unlawful  to  deposit  goods  for  transportation  in  the 

1  9  Cranch,  pp.  426-427. 


218        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

vessel  of  an  enemy,  generally,  however  imposing  its  form,  must 
be  unsound,  because  it  is  in  contradiction  to  acknowledged  law.' 

In  the  next  portion  of  his  judgment — for  these  are  successive  steps 
in  the  reasoning  by  which  Chief  Justice  Marshall  reached  his  con- 
clusion— the  Chief  Justice  considered  the  contention  which  has  been 
60  frequently  advanced  in  the  present  war,  that  the  belligerent  right 
of  visit  and  search  will  be  impaired.    On  this  point  he  said : 

It  is  said,  that  by  depositing  goods  on  board  an  armed  bel- 
ligerent, the  right  of  search  may  be  impaired ;  perhaps,  defeated. 
What  is  this  right  of  search?  Is  it  a  substantive  and  independ- 
ent right,  wantonly,  and  in  the  pride  of  power,  to  vex  and 
harass  neutral  commerce,  because  there  is  a  capacity  to  do  so? 
or  to  indulge  the  idle  and  mischievous  curiosity  of  looking  into 
neutral  trade?  or  the  assumption  of  a  right  to  control  it?  If  it 
be  such  a  substantive  and  independent  right,  it  would  be  better 
that  cargoes  should  be  inspected  in  port,  before  the  sailing  of  the 
vessel,  or  that  belligerent  licenses  should  be  procured.  But  this 
is  not  its  character.  Belligerents  have  a  full  and  perfect  right 
to  capture  enemy  goods,  and  articles  going  to  their  enemy  which 
are  contraband  of  war.  To  the  exercise  of  that  right,  the  right 
of  search  is  essential.  It  is  a  mean  justified  by  the  end.  It  has 
been  truly  denominated  a  right  growing  out  of,  and  ancillary 
to  the  greater  right  of  capture.  Where  this  greater  right  may 
be  legally  exercised,  without  search,  the  right  of  search  can  never 
arise  or  come  into  question. 

But  it  is  said,  that  the  exercise  of  this  right  may  be  pre- 
vented by  the  inability  of  the  party  claiming  it,  to  capture  the 
belligerent  carrier  of  neutral  property.  And  what  injury  results 
from  this  circumstance?  If  the  property  be  neutral,  what  mis- 
chief is  done,  by  its  escaping  a  search  ?  In  so  doing,  there  is  no 
sin,  even  as  against  the  belligerent,  if  it  can  be  effected  by  lawful 
means.  The  neutral  cannot  justify  the  use  of  force  or  fraud, 
but  if,  by  means,  lawful  in  themselves,  he  can  escape  this  vex- 
atious procedure,  he  may  certainly  employ  them. 

To  the  argument,  that  by  placing  his  goods  in  the  vessel  of 
an  armed  enemy,  he  connects  himself  with  that  enemy,  and 
assumes  the  hostile  character;  it  is  answered,  that  no  such  con- 
nection exists.  The  object  of  the  neutral  is  the  transportation 
of  his  goods.  His  connection  with  the  vessel  which  transports 
them  is  the  same,  whether  that  vessel  be  armed  or  unarmed. 
The  act  of  arming  is  not  his — it  is  the  act  of  a  party  who  has 
a  right  so  to  do.  He  meddles  not  with  the  armament,  nor  with 
the  war.  Whether  his  goods  were  on  board  or  not,  the  vessel 
would  be  armed  and  would  sail.     His  goods  do  not  contribute 

'  9  Cranch,  pp.  426-427. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      219 

to  the  armament,  further  than  the  freight  he  pays,  and  freight 
he  would  pay,  were  the  vessel  unarmed.  It  is  difficult  to  per- 
ceive in  this  argument  anything  which  does  not  also  apply  to 
an  unarmed  vessel.  In  both  instances,  it  is  the  right  and  the 
duty  of  the  carrier  to  avoid  capture,  and  to  prevent  a  search. 
There  is  no  difference,  except  in  the  degree  of  capacity  to  carry 
this  duty  into  effect.  The  argument  would  operate  against  the 
rule  which  permits  the  neutral  merchant  to  employ  a  belligerent 
vessel,  without  imparting  to  his  goods  the  belligerent  character. 
The  argument  respecting  resistance  stands  on  the  same 
ground  with  that  which  respects  arming.  Both  are  lawful. 
Neither  of  them  is  chargeable  to  the  goods  or  their  owner,  where 
he  has  taken  no  part  in  it.  They  are  incidents  to  the  character 
of  the  vessel;  and  may  always  occur  where  the  carrier  is 
belligerent.^ 

After  having  disposed  of  these  arguments,  the  Chief  Justice  next 
asks  and  answers  a  very  pertinent  question: 

If  the  neutral  character  of  the  goods  is  forfeited  by  the 
resistance  of  the  belligerent  vessel,  why  is  not  the  neutral  char- 
acter of  the  passengers  forfeited  by  the  same  cause  ?  The  master 
and  crew  are  prisoners  of  war,  why  are  not  those  passengers 
who  did  not  engage  in  the  conflict,  also  prisoners?  That  they 
are  not,  would  seem  to  the  Court  to  afford  a  strong  argument 
in  favor  of  the  goods.  The  law  would  operate  in  the  same  man- 
ner on  both.^ 

In  a  previous  portion  of  Chief  Justice  Marshall's  opinion,  which  it 
is  difficult  not  to  quote  in  full,  but  which  is  so  material  that  it  must 
at  least  be  quoted  in  part,  that  great,  just,  and  upright  man,  decid- 
ing as  he  was  against  the  contentions  of  his  country,  said: 

In  point  of  fact,  it  is  believed,  that  a  belligerent  merchant 
vessel  rarely  sails  unarmed,  so  that  this  exception  from  the  rule 
would  be  greater  than  the  rule  itself.  At  all  events,  the  number 
of  those  who  are  armed,  and  who  sail  under  convoy,  is  too  great, 
not  to  have  attracted  the  attention  of  writers  on  public  law ;  and 
this  exception  to  their  broad  general  rule,  if  it  existed,  would 
certainly  be  found  in  some  of  their  works.  It  would  be  strange, 
if  a  rule  laid  down,  with  a  view  to  war,  in  such  broad  terms 
as  to  have  universal  application,  should  be  so  construed,  as  to 
exclude  from  its  operation  almost  every  case  for  which  it  pur- 
ports to  provide,  and  yet  that  not  a  dictum  should  be  found  in 
the  books,  pointing  to  such  construction.  The  antiquity  of  the 
rule  is  certainly  not  unworthy  of  consideration.     It  is  to  be 

»  9  Cranch,  pp.  427-428.  2  iMd.,  pp.  429. 


220        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

traced  back  to  the  time  when  almost  every  merchantman  was 
in  a  condition  for  self-defense,  and  the  implements  of  war  were 
so  light  and  so  cheap,  that  scarcely  any  would  sail  without  them.^ 

It  is  to  be  observed  that,  in  the  course  of  Chief  Justice  Marshall's 
elaborate  opinion,  that  profound  jurist  states  it  to  be  the  fact  and  the 
custom  that  merchant  ships  armed,  and  that,  if  this  were  the  custom 
of  the  Nations,  it  would  follow  that  it  is  a  principle  of  international 
law  unless  it  has  been  renounced,  and  that  it  remains  a  custom  for 
those  Nations  which  have  been  unwilling  to  renounce  it.  This  prin- 
ciple and  its  consequences  could  not  be  better  stated  than  by  the 
great  Chief  Justice  himself  in  the  case  of  The  Antelope  (10  Wheaton 
66),  in  which  he  held  that,  while  the  slave  trade  might  be  made  piracy 
by  international  law,  it  was  not  piracy  by  the  law  of  Nations,  and  that 
therefore  a  Nation  which  had  not  renounced  the  right  could  continue 
its  exercise.  In  the  course  of  his  opinion  he  spoke  of  fundamentals, 
and  as  the  slave  trade  was  obnoxious  to  him,  the  language  which 
he  felt  himself  forced  to  use,  being  as  much  against  his  feelings  as 
it  was  in  conformity  with  the  dictates  of  a  sound  judgment,  has  a 
double  value: 

In  this  commerce  thus  sanctioned  by  universal  assent,  every 
nation  had  an  equal  right  to  engage.  How  is  this  right  to  be 
lost?  Each  may  renounce  it  for  its  own  people;  but  can  this 
renunciation  affect  others? 

No  principle  of  general  law  is  more  universally  acknowledged, 
than  the  perfect  equality  of  nations.  Russia  and  Geneva  have 
equal  rights.  It  results  from  this  equality,  that  no  one  can 
rightfully  impose  a  rule  on  another.  Each  legislates  for  itself, 
but  its  legislation  can  operate  on  itself  alone.  A  right,  then, 
which  is  vested  in  all,  by  the  consent  of  all,  can  be  divested  only 
by  consent ;  and  this  trade,  in  which  all  have  participated,  must 
remain  lawful  to  those  who  cannot  be  induced  to  relinquish  it. 
As  no  nation  can  prescribe  a  rule  for  others,  none  can  make  a 
law  of  nations;  and  this  traffic  remains  lawful  to  those  whose 
governments  have  not  forbidden  it.^ 

It  may  perhaps  be  said  with  some  show  of  truth  that  the  provision 
of  the  Declaration  of  Paris  of  1856  abolishing  privateering  is  the 
international  agreement  which  meets  Marshall's  requirements.  But 
on  the  threshold  it  should  be  said,  even  if  this  were  admitted,  that 
it  would  not  affect  the  right  of  the  United  States  to  engage  in  pri- 
vateering, much  less  to  arm  its  merchant  vessels  for  offensive  pur- 
poses, because  the  United  States  was  not  and  is  not  now  a  party  to 

'  9  Cranch,  p.  426.  2  10  Wheaton,  p.  120. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    221 

the  Declaration  of  Paris.  Indeed,  it  may  further  be  said  that  it 
specifically  refused  to  assent  to  the  convention  relating  to  the  con- 
version of  merchant  ships  into  warships  adopted  by  the  Second  Hague 
Peace  Conference  in  1907,  as  this  project  was  understood  and  stated 
to  be  the  corollary  of  the  Declaration. 

A  belligerent  cannot  maintain  that  a  treaty  to  which  the  United 
States  is  not  a  party  is  binding  upon  it,  and  indeed,  in  the  course 
of  the  diplomatic  correspondence  with  Great  Britain,  that  Govern- 
ment roundly  informed  the  United  States,  which  had  invoked  the 
benefit  of  the  Declaration  of  Paris  in  another  matter,  that,  not  being 
a  party  to  the  agreement,  it  could  not  invoke  the  provisions  of  the 
Declaration  or  claim  as  of  right  any  benefit  from  it.  Let  us,  how- 
ever, consider  further  this  phase  of  the  subject,  as  great  stress  has 
been  laid  upon  it. 

Privateering  was  abolished  in  1856,  not  because  merchant  vessels 
should  be  unarmed  and  should  not  seek  to  defend  themselves  if 
attacked  by  the  enemy,  but  because  experience  had  shown  beyond 
the  possibility  of  successful  contradiction  that  a  captain  of  a  mer- 
chantman could  not  be  commissioned  to  take  part  in  hostilities  for 
his  private  gain  and  the  gain  of  his  associates,  for  much  the  same 
reason  that  today  there  is  a  tendency  to  deprive  naval  officers  of  the 
interest  in  the  prize  which  by  universal  practice  they  have  hereto- 
fore enjoyed.  War  has  become  a  thing  of  the  State.  It  is  carried  on 
by  regularly  organized  forces  on  land  recruited  by  the  State,  drilled, 
disciplined,  subject  and  responsible  to  the  State.  It  is  carried  out 
upon  the  high  seas  by  men-of-war  built  and  owned  by  the  nation, 
manned  by  commissioned  officers  who,  like  the  crew,  are  subject  to 
military  discipline  and  the  orders  of  the  State.  But  this  does  not  mean 
that  on  land  a  noncombatant  may  not  defend  himself  if  attacked, 
although  he  may  not  attack  unless  complying  with  certain  formalities ; 
nor  does  it  mean  that  a  merchant  vessel  upon  the  high  seas,  subject  to 
capture  by  international  law,  may  not  defend  itself  if  attac]ked, 
using  force  to  repel  force,  or  eluding  capture  by  flight.  There  is, 
and  it  is  believed  there  always  has  been,  a  distinction  between  force 
used  to  ward  off  attack  and  force  used  aggressively,  and  although 
the  line  may  seem  difficult  to  draw  at  times,  it  nevertheless  exists, 
and  courts  of  justice  are  called  upon  to  draw  it  as  a  matter  of  course. 
A  simple  illustration  will  make  this  clear.  While  a  man  may  not 
attack,  and  while,  if  assaulted,  he  should  withdraw  if  possible  to 
save  his  life,  nevertheless,  to  protect  his  life,  he  may  use  the  force 
necessary  to  do  so,  even  to  the  extent  of  taking  the  life  of  his  assailant, 


222        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

vi  repellere  vim.  The  question  is  one  of  fact,  though  this  principle 
may  be  said  to  be  universally  recognized,  because  a  failure  to  do  so 
would  put  a  person  at  the  mercy  of  any  freebooter  running  amuck. 
This  principle  of  law,  however,  must  be  strictly  construed,  otherwise 
we  would  doubtless  have  evil-minded  persons  compelling  assault  and 
justifying  their  action  as  taken  in  self-defense.  The  use  of  force  by 
attack  and  the  use  of  force  to  repel  attack,  are  facts  to  be  proved  as 
such,  and  when  proved  the  principle  of  law  will  automatically  apply. 

To  return  to  the  question  of  privateering,  the  United  States  was 
not  and  is  not  a  party  to  the  Declaration  abolishing  it,  and  the  rea- 
son is  very  simple.  The  United  States  has,  in  season  and  out  of  sea- 
son, stood  for  the  immunity  from  capture  of  innocent  private  prop- 
erty of  the  enemy  upon  the  high  seas,  meaning  thereby  property  other 
than  what  is  called  contraband.  The  United  States  has  on  a  number 
of  occasions  expressed  its  willingness  to  accept  all  the  provisions  of 
the  Declaration  of  Paris,  provided  the  signatory  Powers  should  in 
their  turn  accept,  in  principle  and  in  practice,  the  immunity  of  private 
property  on  the  high  seas.  Because  of  the  unwillingness  of  the  lead- 
ing Powers  to  do  this,  the  United  States  reserves  the  right  to  com- 
mission its  merchantmen  as  privateers  for  the  protection  of  the  prop- 
erty of  its  citizens.  But  in  the  one  foreign  war  to  which  it  has  been 
a  party  since  the  Declaration  of  Paris  was  adopted,  it  adhered  during 
the  continuance  of  that  war  to  the  principles  of  the  Declaration  and 
did  not  commission  privateers  in  the  Civil  or  Spanish  American  Wars. 

If  we  look  a  little  closer  at  the  matter,  we  see  that  the  Declara- 
tion of  Paris  does  not  refer  directly  or  indirectly  to  the  question 
of  arming  a  merchant  ship,  or  to  the  right  of  a  merchant  ship  to 
carry  an  armament  for  defensive  purposes  and  to  protect  itself  from 
capture.  It  is  a  familiar  rule  of  construction  that  a  statute  in  deroga- 
tion of  common  law  is  to  be  strictly  construed.  The  signatories  of 
the  Declaration  of  Paris  renounced  the  right  to  commission  in  the 
future  the  officers  and  crew  of  a  merchant  vessel  to  prey  upon  the 
enemy  for  the  benefit  of  the  owners  of  the  vessel,  its  officers,  and  its 
crew.  That  only  was  renounced,  leaving  untouched  the  right  of  the 
merchant  ship  to  defend  itself  against  attack  by  arms  which  it  may 
carry  for  this  purpose,  but  withdrawing  from  that  vessel  the  exer- 
cise of  belligerent  rights  associated  with  a  war  vessel,  namely,  the 
right  to  open  and  to  commit  hostilities  against  the  enemy,  the  right 
to  visit  and  search  merchant  ships  of  the  enemy,  the  right  to  attack 
them  and  to  capture  them,  and  the  right  to  visit  and  to  search  neu- 
tral ships  which  happened  to  be  found  upon  the  high  seas. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      223 

It  may  be  recalled  that  Prussia,  on  behalf  of  itself  and  of  the 
North  German  Confederation,  proposed  during  the  war  of  1870  with 
France  to  create  a  so-called  volunteer  fleet,  to  be  composed  of  mer- 
chant vessels  placed  at  the  disposition  of  the  Government.  The  crews 
were  to  be  engaged  by  the  owners  of  the  merchantmen,  to  enter  the 
Federal  Navy  during  the  continuance  of  the  war,  to  wear  uniforms, 
and  to  be  subjected  to  military  discipline.  The  officers,  likewise 
enrolled  by  the  owners,  were  to  receive  temporary  commissions,  and, 
as  a  reward  for  extraordinary  service,  the  assurance  was  held  out 
to  them  of  retention  in  the  navy.  The  vessels,  ''hired  ships,"  as 
they  are  called  in  the  decree,  were  to  sail  under  the  Federal  flag,  and 
were  to  "be  armed  by  the  Federal  Royal  Navy  and  fitted  out  for  the 
service  allotted  to  them."  They  were  to  "capture  or  destroy  ships 
of  the  enemy,"  meaning  by  that  term,  French  vessels  of  war,  for 
which  they  were  to  receive  compensation  based  upon  a  generous  scale.' 

It  is  commonly  said  that  the  Volunteer  Navy  was  created  because 
the  Prussian  fleet  at  that  time  was  inferior  to  that  of  France,  and 

'  Royal  Prussian  Decree  of  the  26th  July,  1870,  relative  to  the  Constitution 
of  a  Voluntary  Naval  Force. 

On  your  representation  I  have  approved  the  formation  of  a  voluntary 
naval  force  under  the  following  form: 

1.  To  issue  a  summons  to  all  German  seamen  and  shipowners  to  place 
themselves,  and  their  forces  and  ships  suitable  thereto,  at  the  service  of  the 
Fatherland,  and  under  the  following  conditions: 

(a)  The  vessels  to  be  placed  at  the  disposition  of  the  service  will  be 
examined  and  taxed  by  a  Commission  composed  of  two  naval  oflScers  and 
one  naval  contractor  as  to  their  capabilities  for  the  intended  purpose. 
In  this  case  the  owner  receives  one-tenth  of  the  price  taxed  as  deposit, 
whereupon  he  has  to  hire  the  necessary  volunteer  crews. 

(5)  Officers  and  crews  enrolled  in  this  way  enter  into  the  Federal  navy 
for  the  continuance  of  the  war,  and  wear  its  uniform  and  badge  of  rank, 
acknowledge  its  competency,  and  take  oath  to  the  Articles  of  War.  The 
officers  receive  a  patent  of  their  rank,  and  the  assurance  that,  in  case  of 
extraordinary  service  rendered,  they  can,  at  their  request,  be  permanently 
established  in  the  navy.  Officers  and  men  who  are  rendered,  by  this  service, 
unfit  to  acquire  a  livelihood,  without  any  fault  on  their  side,  receive  a 
pension  calculated  at  the  standard  of  the  Royal  Federal  Navy. 

2.  The  hired  ships  sail  under  the  Federal  flag. 

3.  These  will  be  armed  by  the  Federal  Royal  Navy,  and  fitted  out  for 
the  service  allotted  to  them. 

4.  The  ships  destroyed  in  the  service  of  their  country  will  be  paid  for 
to  their  owners  at  the  price  taxed.  If  at  the  end  of  the  war  they  can  be 
restored  to  the  owners  uninjured,  the  sum  paid  as  deposit  is  reckoned  as  hire. 

5.  A  premiiun  will  be  paid  to  such  ships  as  capture  or  destroy  ships 
of  the  enemy,  according  to  the  following  standard:  For  an  iron-plated 
frigate  50,000  thalers,  an  iron-plated  corvette  or  ram  30,000  thalers,  an 
iron-plated  battery  20,000  thalers,  a  large  screw-vessel  15,000  thalers,  a 
screw- vessel  10,000  thalers.  These  premiimis  will  be  paid  to  the  owners 
of  the  ships,  to  whom  will  be  confided  the  distribution  in  proper  propor- 
tions amongst  the  crew.     . 

(Signed)     Wilhelm. 
(Franco-German  War,  No.  1  [1871],  Parliamentary  Papers,  C-244,  p.  20.) 


224        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

that  the  Prussian  Government  had,  for  the  same  reason,  proposed 
at  the  beginning  of  the  war  to  exempt  from  capture  unoffending 
private  property  of  the  enemy  found  at  sea,  in  the  hope  that  France, 
with  a  larger  and  more  powerful  navy,  might  do  the  same.'  We  are 
not,  however,  concerned  with  this  phase  of  the  subject,  other  than  to 
say  that  France  did  not  agree  to  spare  Prussian  commerce,  and  that  in 
January,  1871,  Prussia  withdrew  its  decree  to  respect  the  immunity 
of  private  property  as  an  act  of  reprisal  due  to  the  destruction  by 
the  French  cruiser  Desaix  of  Prussian  cruisers  upon  the  high  seas, 
instead  of  taking  them,  as  international  law  required,  into  a  French 
port  for  adjudication,^ 

France  promptly  protested  against  the  proposal  of  the  volunteer 
navy  as  contrary  to  the  Declaration  of  Paris,  and  addressed  the 
British  Government  on  the  subject.  Lord  Granville,  then  Secretary 
of  State  for  Foreign  Affairs,  acting  upon  the  advice  of  the  law  offi- 
cers of  the  Crown,  declared  himself  unable  to  object  to  the 
proposal,  as  it  did  not  seem  to  violate  the  Declaration  of  Paris.^ 
And  yet  a  little  reflection  must  convince  us  that  it  was  dangerously 
near  the  border  line,  for  if  war  be  a  relation  between  State  and  State 
and  is  to  be  carried  on  by  agencies  of  the  State,  not  by  private 
persons  acting  in  their  own  behalf  although  with  the  approval  of 

^  The  following  is  the  material  portion  of  the  decree  of  the  North  German 
Confederation  concerning  the  immunity  of  private  property  from  capture,  issued 
July  18,  1870: 

French  merchant  vessels  shall  not  be  subject  to  be  captured  or  seized 
as  prizes  of  war  by  vessels  of  the  Royal  Navy  of  the  Confederation.  This 
rule  does  not  of  course  apply  to  those  vessels  which  would  be  subject  to 
capture  or  seizure  if  they  were  neutral  vessels.  (British  and  Foreign  State 
Papers,  vol.  60,  p.  923.) 

2  Bundesgesetzhuch,  1870,  p.  485;  British  and  Foreign  State  Papers,  vol.  61, 
p.  986. 

'  They  advise  me  that  there  are,  in  their  opinion,  substantial  distinctions 
between  the  proposed  naval  volunteer  force  sanctioned  by  the  Prussian  Govern- 
ment, and  the  system  of  privateering,  which,  under  the  designation  of  "  la  course," 
the  Declaration  of  Paris  was  intended  to  suppress. 

The  Law  Officers  say  that,  as  far  as  they  can  judge,  the  vessels  referred  to 
in  the  Notification  of  the  24th  of  July,  will  be  for  all  intents  and  purposes  in 
the  service  of  the  Prussian  Government,  and  the  crews  will  be  under  the  same 
discipline  as  the  crews  on  board  vessels  belonging  permanently  to  the  Federal 
navy. 

This  being  the  case  now,  and  as  long  as  it  continues  to  be  so,  the  law  officers 
consider  that  Her  Majesty's  Government  cannot  object  to  the  decree  of  the 
Prussian  Government  as  infringing  the  Declaration  of  Paris. 

Her  Majesty's  Government  will,  however,  with  reference  to  the  Prussian 
notification,  call  the  attention  of  the  Prussian  Government  to  the  Declaration  of 
Paris,  and  will  express  their  hope  and  belief  that  Prussia  will  take  care  to 
prevent  by  stringent  instructions  any  breach  of  that  Declaration.  (Lord  Gran- 
ville to  the  Marquis  de  Lavalette,  August  24,  1870.)  (Franco-German  War 
No.  1  [1871],  Parliamentary  Papers,  C-244,  p.  22.) 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     225 

governmental  authorities,  it  would  seem  that  the  distinction 
between  the  volunteer  navy  and  the  erstwhile  privateer  was  some- 
what nebulous. 

In  both  cases  the  vessels  were  privately  owned ;  in  both  they  were 
manned  by  a  crew  engaged  by  the  owners  of  the  vessels,  and  com- 
manded by  officers  engaged  by  the  owners  of  the  vessels,  authorized, 
in  the  case  of  privateers,  by  letters  of  marque  and  reprisal,  in  the 
case  of  the  volunteer  fleet  commissioned  by  the  government,  to  wage 
aggressive  warfare — in  the  case  of  the  privateers  against  vessels  of 
war  and  commerce,  in  the  case  of  the  volunteer  navy  solely  against 
vessels  of  war.  It  is  only  fair  to  admit,  however,  that,  although 
private  vessels  and  manned  by  seafaring  men  instead  of  officers  of 
the  navy,  both  crew  and  officers  of  the  volunteer  fleet  were  subject 
to  military  discipline,  and  that  the  commission  from  the  Government 
would  have  been  no  small  guarantee  against  the  abuse  of  its  terms. 
Nevertheless,  they  were  private,  not  public,  vessels,  and  the  motive 
was  the  destruction  of  public  vessels  of  the  enemy  and  private  gain 
for  themselves. 

The  right  of  merchant  ships  to  carry  arms,  recognized  before  the 
Declaration  of  Paris,  has  been  restated  by  the  executive  and  judicial 
departments  of  the  United  States.  Thus,  in  1877,  Hamilton  Fish,  a 
very  careful  and  experienced  Secretary  of  State,  stated: 

I  am  not  aware  of  any  international  prohibition  or  of  any 
treaty  provision  which  would  prevent  a  vessel  trading  amid  the 
groups  of  islands  of  the  South  Sea  from  carrying  a  couple  of 
guns  and  arms  for  the  proper  and  necessary  protection  of  the 
vessel  against  violence  on  the  part  of  lawless  or  partially  civilized 
communities,  or  of  the  piratical  crews  which  are  represented  to 
occasionally  frequent  those  waters,  providing  always  that  the 
vessel  carrying  such  guns  and  arms  itself  be  on  a  lawful  voyage 
and  be  engaged  in  none  other  than  peaceful  commerce,  and  that 
such  guns  and  arms  be  intended  and  be  used  solely  for  the  pur- 
pose of  defense  and  of  self-protection.^ 

In  the  case  of  Gushing  v.  United  States,^  decided  in  1886,  the 
Court  of  Claims  had  occasion  to  consider  whether  permission  given 
by  the  statutes  of  the  United  States  to  carry  arms  for  defensive  pur- 
poses subjected  them  because  of  this  fact  to  treatment  as  men-of-war. 
After  considering  the  nature  of  offensive  warfare,  Mr.  Justice  Davis, 
speaking  for  the  Court,  said: 

^Mr.   Fish  to  Mr.   Morrill,  Feb.   8,    1877,    117  Dom.   Let.   54;    quoted  from 
Moore's  International  Law  Digest,  vol.  2,  p.  1070. 
2  22  U.  S.,  Court  of  Claims  Reports,  p.  1. 


226        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  statutes  we  have  cited  have  no  such  object ;  they  are  not 
aggressive  in  their  provisions  or  in  the  power  they  give,  but 
entirely  defensive,  except  in  the  instance  of  seizing  armed  vessels 
or  retaking  captured  American  vessels.  The  aim  of  the  statute 
is  defense  of  our  merchantmen,  not  depredations  upon  the  com- 
merce of  France,  not  compensation  to  the  United  States  for 
losses  already  incurred,  not  security  for  demands  heretofore 
made,  but  protection  and  safety  in  the  future.  It  seems  to  us, 
therefore,  that  these  acts  lack  the  essential  elements  of  statutes 
of  reprisals.' 

And  on  reconsideration  the  Court  of  Claims  affirmed  these  views  in 
the  case  of  Hooper,  Admr.,  v.  United  States:  ^ 

A  privateer  is  an  armed  vessel  belonging  to  one  or  more 
private  individuals,  licensed  by  Government  to  take  prizes  from 
an  enemy;  its  authority  in  this  regard  must  depend  altogether 
upon  the  extent  of  the  commission  issued  to  it,  and  is  qualified 
and  limited  by  the  laws  under  which  the  commission  is  issued. 
{The  Thomas  Gibbons,  8  Cranch,  p.  421.) 

The  Hooper  case  is  very  interesting  as  showing  the  flagrant  dis- 
regard of  international  law  in  the  matter  of  capture.  After  describ- 
ing the  conditions  obtaining  at  the  end  of  the  eighteenth  century, 
Mr.  Justice  Davis  stated  that  merchant  vessels  carried  armament 
and  he  thus  pointed  out  the  distinction  between  armament  for  defense 
and  for  attack: 

Judges  "are  not  to  shut  their  eyes  to  what  is  generally  pass- 
ing in  the  world"  (Blatchford  Prize  Cases,  p.  448),  nor  as  to 
what  has  already  taken  place.  In  danger  from  native  pirates, 
in  danger  from  French  privateers  often  as  irresponsible  {Cush- 
ing's  Administrator,  ante,  p.  1),  the  mere  possession  of  some 
armament  by  a  merchantman  is  devoid  of  marked  significance. 
It  is  improbable  that  any  important  venture  was  sent  to  sea  with- 
out an  effort  on  the  part  of  the  ship-owner  to  protect  his  prop- 
erty and  that  laden  on  his  vessel;  cannon  enough  or  muskets 
enough  he  would  put  on  board  to  give  his  crew  a  fair  chance  of 
escape  from  a  small  force.  The  statute,  however,  said  that  no 
armed  merchantman  should  receive  a  clearance  or  permit,  or  be 
suffered  to  depart  unless  the  owners  and  the  master  gave  bond 
conditioned,  among  other  things,  that  the  vessel  should  not  com- 
mit any  depredation,  outrage,  unlawful  assault,  or  unprovoked 
violence  upon  the  high  seas  against  the  vessel  of  any  nation  in 
amity  with  the  United  States.     (1  Stat.  L.,  p.  573.)    .    .    . 

In  our  view  of  the  case  it  is  vital  to  note  the  distinction  be- 
tween armament  for  protection  simply  and  armament  for  attack 
upon  armed  vessels  or  for  attack  upon  captured  American  vessels 
*  22  U.  S.,  Court  of  Claims  Reports,  pp.  39-40.  2  lUd.,  pp.  408,  428. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      227 

necessarily  in  charge  of  prize  crews.  A  privateer  is  maintained 
for  profit;  the  venture  is  most  speculative  in  its  nature,  bring- 
ing large  returns  for  great  risk.  Given  the  right  to  prey  upon 
the  mercantile  marine,  great  armament  is  not  necessary,  as 
combat  may  be  avoided  by  speed  and  quickness  in  manoeuvre. 
The  privateering  authorized  by  the  acts  of  1798  was  of  no  such 
nature;  not  a  prize  could  be  taken  without  conflict,  for  only 
armed  vessels,  or  vessels  in  charge  of  prize  crews,  could  be  seized ; 
not  a  merchantman  was  allowed  to  be  molested.' 

That  a  vessel  fitted  with  defensive  armament  in  accordance  with 
the  statutes  of  the  United  States,  to  protect  itself  against  unlawful 
aggression  on  the  part  of  French  vessels,  was  nevertheless  a  merchant 
vessel  and  as  such  subject  to  the  exercise  of  the  belligerent  right  of 
visit  and  search,  is  specifically  stated  in  the  case  of  The  Schooner 
Jane  v.  The  United  States,^  decided  in  1901,  on  the  ground  that  the 
statute  of  no  nation  could  vary  the  rule  of  international  law,  and 
that  by  the  law  of  nations  visit  and  search  was  a  belligerent  right  to 
which  a  vessel  of  the  United  States,  then  a  neutral,  was  subjected. 

But  a  decision  of  the  Supreme  Court  of  the  United  States  of  the 
year  1900  can  be  invoked,  decided  at  a  time  when  armament  had 
not  become  a  burning  question.  The  Panama  (176  U.S.,  p.  535), 
"a  Spanish  mail  steamship,"  to  quote  the  headnote  of  the  case,  was 
"on  a  voyage  from  New  York  to  Havana,  carrying  a  general  cargo, 
passengers  and  mails,  and  having  mounted  on  board  two  breech- 
loading  Hontoria  guns  of  nine  centimetre  bore,  and  one  Maxim  rapid- 
firing  gun,  and  having  also  on  board  twenty  Remington  rifles  and  ten 
Mauser  rifles,  with  ammunition  for  all  the  guns  and  rifles,  and  thirty 
or  forty  cutlasses."  This  armament  had  been  placed  on  board  the 
vessel  a  year  before  the  outbreak  of  the  war  with  Spain,  "for  her 
own  defense,"  to  quote  again  the  headnote  of  the  case,  "as  required 
by  her  owner's  mail  contract  with  the  Spanish  Government,  which 
also  provided  that,  in  case  of  war,  that  government  might  take  pos- 
session of  the  vessel  with  her  equipment,  increase  her  armament,  and 
use  her  as  a  war  vessel,  and,  in  these  and  other  provisions,  contem- 
plated her  use  for  hostile  purposes  in  time  of  war. ' '  Mr.  Justice  Gray, 
speaking  for  the  Court,  overruled  the  plea  that  a  mail  vessel  was  by 
international  law  exempt  from  capture,  and  he  also  overruled  the  plea 
of  the  government  that  the  presence  of  armament  subjected  The 
Panama  to  capture,  even  although  a  mail  steamer  should  be  exempt. 
After  having  decided  this  question  in  the  negative,  Mr.  Justice  Gray 

'  22  U.  S.,  Court  of  Claims  Reports,  pp.  433-434. 
2  37  U.  S.,  Court  of  Claims  Reports,  p.  24. 


228        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

thus  stated  the  further  question  upon  which  the  Court  was  obliged 
to  render  a  judgment: 

The  remaining  question  in  the  ease  is  whether  The  Panama 
came  within  the  class  of  vessels  described  in  the  fourth  clause 
of  the  President's  proclamation  of  April  26,  1898,  as  "Spanish 
merchant  vessels,"  and  not  as  "Spanish  vessels  having  on  board 
any  officer  in  the  military  or  naval  service  of  the  enemy,  or  any 
coal  (except  such  as  may  be  necessary  for  their  voyage),  or  any 
other  article  prohibited  or  contraband  of  war,  or  any  despatch 
of  or  to  the  Spanish  Government." 

On  the  part  of  the  claimant,  it  was  argued  that  the  arms 
which  The  Panama  carried,  under  the  requirements  of  her  mail 
contract  and  for  the  protection  of  the  mails,  are  not  to  be  re- 
garded as  contraband  or  munitions  of  war,  within  the  sense  of 
this  clause;  that  "contraband,"  as  therein  referred  to,  means 
contraband  cargo,  not  contrajjand  portion  of  the  ship's  per- 
manent equipment;  and  that,  if  the  furnishings  of  a  ship  could 
be  regarded  as  contraband,  every  ship  would  have  contraband 
on  board. 

On  the  other  hand,  it  was  contended,  in  support  of  the  con- 
demnation, that  the  arms  which  The  Panama  carried,  belonging 
to  her  owner,  were  contraband  of  war,  and  rendered  her  liable 
to  capture;  and  that  by  reason  of  her  being  so  armed,  and  of 
the  provisions  of  her  mail  contract  with  the  Spanish  Govern- 
ment, requiring  her  armament,  and  recognizing  the  right  of  that 
Government,  in  case  of  a  suspension  of  the  mail  service  by 
war,  to  take  possession  of  her  for  warlike  purposes,  she  cannot 
be  considered  as  a  merchant  vessel,  within  the  meaning  of  the 
proclamation,  but  must  be  treated  like  any  regular  vessel  of 
the  Spanish  Navy  under  similar  circumstances.^ 

On  the  first  part  of  this  question  Mr.  Justice  Gray  thus  said  for 
the  Court: 

The  claimant  much  relied  on  a  case  decided  in  1800  by  the 
French  Council  of  Prizes,  in  accordance  with  the  opinion  and 
report  of  Portalis,  himself  a  high  authority.  (Wheaton,  8th  ed., 
p.  460;  De  Boeck,  sec.  81.)  In  the  case  referred  to,  an  Ameri- 
can vessel,  carrying  ten  cannon  of  various  sizes,  together  with 
muskets  and  munitions  of  war,  had  been  captured  by  French 
frigates;  and  had  been  condemned  by  two  inferior  French  tri- 
bunals, upon  the  ground  that  she  was  armed  for  war,  and  had 
no  commission  or  authority  from  her  own  government.  The 
claimants  contended  that  their  ship,  being  bound  for  India,  was 
armed  for  her  own  defense,  and  that  the  munitions  of  war, 
the  muskets  and  the  cannon  that  composed  her  armament  did 
not  exceed  what  was  usual  in  like  cases  for  long  voyages.    Upon 

'  176  U.  S.,  Reports,  p.  543. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      229 

this  point,  Portalis,  acting  as  commissioner  of  the  French 
Government,  reported  his  conclusion  on  the  question  of  arma- 
ment as  follows:  "For  my  part,  I  do  not  think  it  is  enough 
to  have  or  to  carry  arms,  to  incur  the  reproach  of  being 
armed  for  war.  Armament  for  war  is  of  a  purely  offensive 
nature.  It  is  established  when  there  is  no  other  object  in  the 
armament  than  that  of  attack,  or,  at  least,  when  everything 
shows  that  such  is  the  principal  object  of  the  enterprise;  then 
a  vessel  is  deemed  enemy  or  pirate,  if  she  has  no  commission  or 
papers  sufficient  to  remove  all  suspicion.  But  defense  is  a  nat- 
ural right,  and  means  of  defense  are  lawful  in  voyages  at  sea, 
as  in  all  other  dangerous  occupations  of  life,  A  ship  which 
had  but  a  small  crew,  and  a  considerable  cargo,  was  evidently 
intended  for  commerce,  and  not  for  war.  The  arms  found  on 
this  ship  were  evidently  intended,  not  for  committing  acts  of 
rapine  or  hostility,  but  for  preventing  them;  not  for  attack, 
but  for  self-defense.  The  pretext  of  being  armed  for  war  there- 
fore appears  to  me  to  be  unfounded,"  The  Council  of  Prizes, 
upon  consideration  of  the  report  of  Portalis,  adjudged  that  the 
capture  of  the  vessel  and  her  cargo  was  null  and  void,  and 
ordered  them  to  be  restored,  with  damages,  (The  Pegou,  or 
Pigou,  2  Pistoye  et  Duverdy,  Prises  Maritimes,  p.  51;  S.  C. 
2  Cranch,  pp.  96-98,  and  note.) 

But  in  that  case  the  only  question  at  issue  was  whether  a 
neutral  merchant  vessel,  carrying  arms  solely  for  her  own  de- 
fense, was  liable  to  capture  for  want  of  a  commission  as  a  vessel 
of  war  or  privateer.  That  the  capture  took  place  while  there 
was  no  state  of  war  between  France  and  the  United  States  is 
shown  by  her  being  treated,  throughout  the  case,  as  a  neutral 
vessel;  if  she  had  been  enemy's  property,  she  would  have  been 
lawful  prize,  even  if  she  had  a  commission,  or  if  she  were 
unarmed.  She  was  not  enemy's  property,  nor  in  the  enemy's 
possession,  nor  bound  to  a  port  of  the  enemy ;  nor  had  her  owner 
made  any  contract  with  the  enemy  by  which  the  enemy  was, 
or  would  be,  under  any  circumstances,  entitled  to  take  and  use 
her,  either  for  war,  or  for  any  other  purpose.' 

After  saying  that,  "generally  speaking,  arms  and  ammunition  are 
contraband  of  war,"  and  invoking  the  authority  of  The  PeterJioff 
(5  Wallace,  p.  28),  the  learned  justice  thus  continued: 

Yet  it  must  be  admitted  that  arms  and  ammunition  are  not 
contraband  of  war,  when  taken  and  kept  on  board  a  merchant 
vessel  as  part  of  her  equipment,  and  solely  for  her  defense 
against  "enemies,  pirates,  and  assailing  thieves,"  according  to 
the  ancient  phrase  still  retained  in  policies  of  marine  insurance.^ 

^  U.  S.,  Court  of  Claims  Reports,  pp.  543-545. 
2  Ibid.,  pp.  545-546. 


230        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Section  2.   Visit  and  Search 

It  is  perhaps  not  too  much  to  say  that  the  question  of  visit  and 
search,  which  was  thought  to  have  been  as  well  settled  as  any  prin- 
ciple of  international  law  and  recognized  in  the  practice  of  Nations, 
has  proved  to  be  the  most  troublesome  question  with  which  neutrals 
have  been  confronted  during  the  war,  and  that  the  failure  to  comply 
with  the  requirements  of  visit  and  search  as  hitherto  understood  and 
practiced  has  caused  the  United  States  to  slip  from  its  neutral  moor- 
ings and  to  range  itself  with  the  Allies  against  the  Imperial  German 
Government.  The  cause  of  the  trouble  seems  to  be  due  to  the  fact 
that  the  new  weapon,  the  submarine,  which  the  Imperial  German 
Government  has  introduced  and  upon  which  it  has  pinned  its  hopes 
of  victory,  is  so  frail  in  structure  and  so  small  in  size  that  it  cannot 
expose  itself  to  the  danger  of  attack  from  a  merchant  ship  which  a 
surface  cruiser  would  overhaul,  and  it  cannot  take  on  board  the  pas- 
sengers and  crew  of  the  merchant  vessel,  which  it  is  unable  to  carry 
into  port  and  which  it  therefore  destroys.  It  is  every-day  experience 
that  we  must  take  the  bad  with  the  good,  the  loss  with  the  profit,  or, 
as  this  principle  is  expressed  in  Roman  law  and  incorporated  in 
every  system  of  jurisprudence,  cujus  est  commodum,  ejus  est 
periculum. 

The  question  of  visit  and  search  has  to  be  considered  from  two 
points  of  view,  from  the  standpoint  of  the  belligerent  and  from 
the  standpoint  of  the  neutral,  or,  expressed  in  other  terms,  when  a 
belligerent  and  a  neutral  merchantman  are  involved.  While  a  belliger- 
ent man-of-war  possesses  the  right  to  overhaul  any  merchantman  of 
any  nationality  irrespective  of  the  flag  it  flies,  its  rights  against 
enemy  and  neutral  vessels  are  very  different.  It  may  capture  and, 
under  exceptional  circumstances,  destroy  the  one ;  it  may  detain  and, 
through  judicial  procedure,  condemn  the  other.  Because  of  this  it 
behooves  the  belligerent  cruiser  to  determine  whether  the  vessel  is 
enemy  or  neutral,  lest  the  undoubted  right  in  the  one  case  become 
an  actionable  wrong  in  the  other. 

To  obviate  mistake  and  the  liability  for  its  consequences,  to  con- 
fine belligerent  operations  to  the  enemy  and  not,  by  a  policy  of 
aggression,  convert  the  neutral  into  an  opponent,  the  law  of  Nations, 
common  to  all,  and  similar  if  not  identical  in  practice,  prescribes 
that  the  belligerent  cruiser  shall  by  visit  and  search  ascertain  the 
character  of  the  vessel  before  it  takes  action.  The  right  of  visit  and 
search  is  strictly  a  belligerent  right.    It  does  not  exist  in  time  of 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      231 

peace.  Although  no  authority  is  needed  on  this  point,  the  following 
statement  from  the  opinion  of  Mr.  Justice  Story  in  The  Ma/ria^ma 
Flora  (11  Wheaton  1),  decided  in  1826,  is  quoted: 

In  considering  these  points,  it  is  necessary  to  ascertain,  what 
are  the  rights  and  duties  of  armed,  and  other  ships,  navigating 
the  ocean,  in  time  of  peace.  It  is  admitted,  that  the  right  of 
visitation  and  search  does  not,  under  such  circumstances,  belong 
to  the  public  ships  of  any  nation.  This  right  is  strictly  a  bel- 
ligerent right,  allowed  by  the  general  consent  of  nations,  in  time 
of  war,  and  limited  to  those  occasions.    .    .    . 

Upon  the  ocean,  then,  in  time  of  peace,  all  possess  an  entire 
equality.  It  is  the  common  highway  of  all,  appropriated  to  the 
use  of  all;  and  no  one  can  vindicate  to  himself  a  superior  or 
exclusive  prerogative  there.  Every  ship  sails  there  with  the 
unquestionable  right  of  pursuing  her  own  lawful  business,  with- 
out interruption;  but  whatever  may  be  that  business,  she  is 
bound  to  pursue  it  in  such  a  manner  as  not  to  violate  the  rights 
of  others.  The  general  maxim  in  such  eases  is,  sic  utere  tuo, 
ut  non  alienum  laedasJ' 

In  deciding  this  case  Mr.  Justice  Story  referred  to  and  relied  upon 
that  of  Le  Louis  (2  Dodson  210),  decided  in  1817,  by  Sir  William 
Scott,  later  Lord  Stowell,  whose  language  is  so  pertinent  that  it 
may  well  serve  as  a  conclusion  to  this  general  statement  and  as  an 
introduction  to  the  discussion  which  is  to  follow,  as  it  lays  down  prin- 
ciples which  were  fundamental  when  uttered  and  which  must  remain 
fundamental  and  be  respected  if  nations  are  ever  to  live  in  peace  arid 
harmony. 

A  French  vessel,  Le  Louis,  was  taken  upon  the  high  seas  by  a 
British  cruiser  in  time  of  peace  pursuant  to  an  act  of  Parliament 
condemning  as  piracy  the  slave  trade,  in  which  the  French  vessel 
w£is  engaged.  On  the  case  as  thus  presented  and  on  the  question 
whether  the  right  of  visit  and  search  existed  under  these  circum- 
stances in  time  of  peace,  his  Lordship  said : 

Upon  the  first  question,  whether  the  right  of  search  exists  in 
time  of  peace,  I  have  to  observe,  that  two  principles  of  public 
law  are  generally  recognized  as  fundamental.  One  is  the  per- 
fect equality  and  entire  independence  of  all  distinct  states. 
Relative  magnitude  creates  no  distinction  of  right;  relative  im- 
becility, whether  permanent  or  casual,  gives  no  additional  right 
to  the  more  powerful  neighbor;  and  any  advantage  seized  upon 
that  ground  is  mere  usurpation.    This  is  the  great  foundation  of 

*  11  Wheaton,  p.  42. 


232        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

public  law,  which  it  mainly  concerns  the  peace  of  mankind,  both 
in  their  politic  and  private  capacities,  to  preserve  inviolate. 
The  second  is,  that  all  nations  being  equal,  all  have  an  equal 
right  to  the  uninterrupted  use  of  the  unappropriated  parts  of 
the  ocean  for  their  navigation.  In  places  where  no  local  author- 
ity exists,  where  the  subjects  of  all  states  meet  upon  a  footing 
of  entire  equality  and  independence,  no  one  state,  or  any  of 
its  subjects,  has  a  right  to  assume  or  exercise  authority  over  the 
subjects  of  another.  I  can  find  no  authority  that  gives  the  right 
of  interruption  to  the  navigation  of  states  in  amity  upon  the 
high  seas,  excepting  that  which  the  rights  of  war  give  to  both 
belligerents  against  neutrals.  This  right,  incommodious  as  its 
exercise  may  occasionally  be  to  those  who  are  subjected  to  it, 
has  been  fully  established  in  the  legal  practice  of  nations,  having 
for  its  foundation  the  necessities  of  self-defense,  in  preventing 
the  enemy  from  being  supplied  with  the  instruments  of  war, 
and  from  having  his  means  of  annoyance  augmented  by  the 
advantages  of  maritime  commerce.  Against  the  property  of  his 
enemy  each  belligerent  has  the  extreme  rights  of  war.  Against 
that  of  neutrals,  the  friends  of  both,  each  has  the  right  of  visi- 
tation and  search,  and  of  pursuing  an  inquiry  whether  they  are 
employed  in  the  service  of  his  enemy,  the  right  being  subject, 
in  almost  all  cases  of  an  inquiry  wrongfully  pursued,  to  a  com- 
pensation in  costs  and  damages.^ 

The  nature  and  the  extent  of  the  right  of  the  belligerent  to  visit 
and  search  the  vessels  of  the  neutral  have  been  stated  in  terms  which 
have  become  classic  by  Lord  Stowell  in  his  judgment  in  the  case  of 
The  Maria,'^  decided  in  1799,  shortly  after  his  advent  to  the  bench. 
In  this  early  judgment  he  apparently  felt  the  necessity  of  declaring 
the  principles  by  which  he  should  be  guided  in  eases  of  this  kind. 
They  were,  in  his  opinion,  three  in  number : 

1st.  That  the  right  of  visiting  and  searching  merchant  ships 
upon  the  high  seas,  whatever  be  the  ships,  whatever  be  the  car- 
goes, whatever  be  the  destinations,  is  an  incontestable  right  of  the 
lawfully  commissioned  cruisers  of  a  belligerent  nation.  I  say, 
be  the  ships,  the  cargoes,  and  the  destinations  what  they  may, 
because,  till  they  are  visited  and  searched,  it  does  not  appear 
what  the  ships,  or  the  cargoes,  or  the  destinations  are;  and  it 
is  for  the  purpose  of  ascertaining  these  points  that  the  neces- 
sity of  this  right  of  visitation  and  search  exists.  This  right  is 
so  clear  in  principle,  that  no  man  can  deny  it  who  admits  the 
legality  of  maritime  capture ;  because  if  you  are  not  at  liberty 
to  ascertain  by  sufficient  inquiry  whether  there  is  property  that 
can  legally  be  captured,  it  is  impossible  to  capture.    .    .    . 

'  2  Dodson,  p.  243.  2  i  C.  Robinson,  p.  340. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    233 

2dly.  That  the  authority  of  the  sovereign  of  the  neutral 
country  being  interposed  in  any  manner  of  mere  force  cannot 
legally  vary  the  rights  of  a  lawfully  commissioned  belligerent 
cruiser.    .    .    . 

Sdly.  That  the  penalty  for  the  violent  contravention  of 
this  right  is  the  confiscation  of  the  property  so  withheld  from 
visitation  and  search.  For  the  proof  of  this  I  need  only  refer 
to  Vattel,  one  of  the  most  correct  and  certainly  not  the  least 
indulgent  of  modern  professors  of  public  law.'    .     .     . 

Sir  William  Scott  was  very  sure  of  the  principles  he  was  laying  down 
and  he  was  also  sure  of  the  exception  he  was  about  to  mention,  be- 
cause he  felt  himself  justified  in  debating,  and  proclaiming  publicly: 

But  I  stand  with  confidence  upon  all  fair  principles  of  rea- 
son,— upon  the  distinct  authority  of  Vattel, — upon  the  Institutes 
of  other  great  maritime  countries,  as  well  as  those  of  our  own 
country, — when  I  venture  to  lay  it  down,  that  by  the  law  of 
nations,  as  now  understood,  a  deliberate  and  continued  resist- 
ance to  search,  on  the  part  of  a  neutral  vessel  to  a  lawful  cruiser, 
is  followed  by  the  legal  consequence  of  confiscation." 

It  is  believed  that  no  stronger  statement  is  to  be  found  in  the  books 
of  the  duty  of  the  neutral  to  submit  to  visit  and  search,  and  it  is 
also  believed  that  no  stronger  statement  is  to  be  found  in  the  books 
of  the  duty  of  the  belligerent  cruiser  to  visit  and  search  the  neutral 
vessel  in  order  to  determine  whether  it  or  its  cargo  is  liable  to 
seizure  or  confiscation.  And  while  planting  himself  firmly  upon  all 
fair  principles  of  reason,  upon  the  authority  of  publicists  and  upon 
the  practice  of  maritime  Nations,  he  nevertheless  felt  it  necessary 
to  provide  for  the  exceptional  case  justifying  resistance  against  the 
unlawful  acts  of  a  belligerent  in  the  matter  of  visit  and  search, 
raising  the  issue  of  self-preservation.    Thus : 

How  stands  it  by  the  general  law?  I  don't  say  that  cases 
may  not  occur  in  which  a  ship  may  be  authorized  by  the  natural 
rights  of  self-preservation  to  defend  itself  against  extreme  vio- 
lence threatened  by  a  cruiser  grossly  abusing  his  commission; 
but  where  the  utmost  injury  threatened  is  the  being  carried  in 
for  inquiry  into  the  nearest  port,  subject  to  a  full  responsibility 
in  costs  and  damages  if  this  is  done  vexatiously  and  without  just 
cause,  a  merchant  vessel  has  not  a  right  to  say  for  itself,  (and  an 
armed  vessel  has  not  a  right  to  say  for  it),  "I  will  submit  to  no 
such  inquiry,  but  I  will  take  the  law  into  my  own  hands  by 

>  1  C.  Robinson,  pp.  360-364.  2  md.,  p.  369. 


234        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

force."  "What  is  to  be  the  issue,  if  each  neutral  vessel  has  a 
right  to  judge  for  itself  in  the  first  instance  whether  it  is  rightly- 
detained,  and  to  act  upon  that  judgment  to  the  extent  of  using 
force?  Surely  nothing  but  battle  and  bloodshed,  as  often  as 
there  is  anything  like  an  equality  of  force  or  an  equality  of 
spirit.' 

This  is  no  doubt  true,  and  the  neutral  should  not  resist  if  it  is 
not  to  pass  upon  in  the  matter  of  visit  and  search  which  it  is  inclined 
to  consider  unlawful.  As  Sir  William  Scott  says,  the  inconvenience 
is  that  of  being  carried  into  the  port  of  the  captor  with  compensa- 
tion in  damages  for  the  unlawful  act ;  but  if  the  captor  is  known  to 
sink  at  sight  and  without  warning,  and  even  in  the  case  of  warning 
to  cast  officers  and  crew  and  passengers  adrift  to  shift  for  them- 
selves without  taking  them  aboard,  as  was  not  done  even  by  France 
when  it  was  running  amuck  in  the  days  of  the  Revolution,  an  excep- 
tional case  is  clearly  made  out  in  the  sense  of  Sir  "William  Scott. 
Accepting  this  judgment  in  its  full  extent  as  correct  in  principle, 
and  therefore  correct  in  law,  the  right  of  the  belligerent  against 
the  property  of  its  enemy  is  the  right  of  capture,  and  the  right  of 
visit  and  search  is  ancillary  to  that  right.  The  right  of  the  bellig- 
erent against  neutrals  is  the  right  of  self-defense  in  preventing 
the  ''enemy  from  being  supplied  with  the  instruments  of  war,  and 
from  having  his  means  of  annoyance  augmented  by  the  advantages 
of  maritime  commerce,"  and  to  the  exercise  of  this  right  visit  and 
search  are  an  indispensable  prerequisite,  because  without  visit  and 
search  it  cannot  be  determined  whether  the  neutral  vessel  is  engaged 
in  a  transaction  which  renders  it  obnoxious  to  the  belligerent. 

Section  3.   Destruction  op  Prizes 

On  principle  it  is  clear  that,  if  the  property  of  the  enemy  be 
liable  to  capture,  a  belligerent  cruiser  may  seize  an  enemy  merchant- 
man and  that  by  the  fact  of  war  the  title  passes  from  the  enemy  to 
the  country  of  the  captor;  and  it  is  immaterial  to  the  private  owner 
if  he  is  thus  deprived  of  his  property  whether  it  be  used  or  destroyed 
by  the  belligerent.  It  is,  however,  a  matter  of  importance  to  the 
individual  captors  who,  by  virtue  of  the  laws  of  their  country,  are 
entitled  to  a  share  in  the  spoils,  that  the  capture  be  valid,  because 
otherwise  they  have  no  claim,  and  that  the  title,  vested  by  capture 
in  the  sovereign,  be  divested  by  a  court  of  the  sovereign  and  passed 

'  1  C.  Robinson,  p.  374. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      235 

to  the  captors,  a  prerequisite  of  which  is  that  the  vessel  was  an  enemy 
vessel  and  therefore  lawful  prize.  It  is  also  material  to  a  neutral 
who  may  claim  an  interest  in  the  vessel  or  cargo  that  his  rights  in 
the  premises  be  determined  and  safeguarded,  which  can  best  be  done 
in  a  judicial  proceeding  according  to  the  rules  of  law,  in  the  quiet 
of  the  courtroom,  instead  of  by  a  decision  of  the  commander  of  the 
capturing  vessel  laboring  under  excitement  and  given  offhand  from 
the  quarter-deck. 

Therefore  it  has  become  a  rule  of  the  law  of  Nations  and  a  prac- 
tice of  belligerents  to  pass  enemy  prizes  before  a  court  of  justice  for 
the  benefit  of  the  officers  and  crew  making  the  capture  and  entitled 
to  a  share  of  the  proceeds  and  for  the  benefit  of  neutrals  whose  rights 
may  be  involved.  In  exceptional  cases,  however,  it  is  the  practice  of 
Nations  to  destroy  an  enemy  prize.  This  is  allowed  when  the  prize 
cannot  be  brought  into  a  port  of  the  captor,  or  when  such  action 
would,  in  the  judgment  of  the  captor,  seriously  interfere  with  the 
military  operations. 

An  authority  or  two  is  quoted  on  each  of  these  points,  although  it 
may  seem  superfluous  to  do  so  because  of  their  universal  recognition. 

In  the  leading  case  of  TTie  Elsehe  (5  C.  Robinson  173),  decided  in 
1804,  Sir  William  Scott  was  obliged  to  consider  the  interest  of  the 
Crown  as  distinct  from  the  interest  of  the  individual  captors  in  the 
prize,  and  in  the  course  of  his  observations  that  very  learned  and 
upright  judge  said: 

Prize  is  altogether  a  creature  of  the  crown.  No  man  has, 
or  can  have,  any  interest  but  what  he  takes  as  the  mere  gift  of 
the  crown.  Beyond  the  extent  of  that  gift,  be  has  nothing. 
This  is  the  principle  of  law  on  the  subject,  and  founded  on 
the  wisest  reasons.  The  right  of  making  war  and  peace  is 
exclusively  in  the  crown.  The  acquisitions  of  war  belong  to 
the  crown;  and  the  disposal  of  these  acquisitions  may  be  of  the 
utmost  importance  for  the  purposes  both  of  war  and  peace.  This 
is  no  peculiar  doctrine  of  our  constitution;  it  is  universally  re- 
ceived as  a  necessary  principle  of  public  jurisprudence,  by  all 
writers  on  the  subject,  Bello  parta  cedunt  reipuhlicae.  It  is  not 
to  be  supposed  that  this  wise  attribute  of  sovereignty  is  con- 
ferred without  reason ;  it  is  given  for  the  purpose  assigned,  that 
the  power  to  whom  it  belongs  to  decide  on  peace  or  war  may 
use  it  in  the  most  beneficial  manner  for  the  purposes  of  both.^ 

Next  as  to  the  right  of  the  belligerents  to  destroy  the  enemy  prize, 
tempered  by  the  interest  of  neutrals.    Again  the  great  authority  of 

'  5  C.  Robinson,  p.   181. 


23G        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Sir  William  Scott  is  invoked.    In  the  case  of  The  Felicity  (2  Dodson, 
p.  381),  decided  in  1819,  the  question  was  as  to  the  right  of  the 
captor  to  destroy  an  American  vessel  captured  during  the  war  of 
1812  between  Great  Britain  and  the  United  States. 
The  facts  of  the  case  are  thus  stated  by  his  Lordship : 

This  ship  and  cargo,  American  property,  were  destroyed  by 
Captain  Hope  of  his  Majesty's  ship  Endymion  on  the  1st  of 
January,  1814,  being  then  in  the  prosecution  of  a  voyage  from 
Cadiz  (where  she  had  carried  provisions)  to  Boston,  where  her 
owners  resided.  She  had  encountered  a  continuance  of  most 
tempestuous  weather,  and  had  suffered  most  severely  under  it,  so 
as  to  make  it  more  than  doubtful  whether  she  could  possibly 
reach  America.  Under  a  strong  sense  of  their  danger,  they  had 
determined,  upon  a  general  council  of  the  master  and  mariners, 
to  make  for  the  island  of  Bermuda,  but  were  bafSed  by  the 
opposition  of  a  head-wind,  and  compelled  to  resume  their  course 
to  America  in  their  shattered  condition ;  and  under  the  unsettled 
and  boisterous  weather  which  belongs  to  that  season  of  the 
year  in  such  latitudes,  she  is  met  with  by  his  Majesty's  ship 
Endymion,  Captain  Hope,  by  whose  orders  she  was  destroyed, 
after  her  captain  and  crew,  with  their  baggage,  were  removed 
on  board  The  Endymion^ 

His  Lordship  then  considered  the  right  of  the  captor  to  destroy  the 
vessel  under  these  circumstances.     On  this  point  he  says: 

Taking  this  vessel  and  cargo  to  be  merely  American,  the 
owners  could  have  no  right  to  complain  of  this  act  of  hostility, 
for  their  property  was  liable  to  it,  in  the  character  it  bore, 
at  that  period,  of  enemy's  property.  There  was  no  doubt  that 
The  Endymion  had  a  full  right  to  inflict  it,  if  any  grave  call  of 
public  service  required  it.  Regularly  a  captor  is  bound  by  the 
law  of  his  own  country,  conforming  to  the  general  law  of  nations, 
to  bring  in  for  adjudication,  in  order  that  it  may  be  ascertained 
whether  it  be  enemy's  property;  and  that  mistakes  may  not  be 
committed  by  captors,  in  the  eager  pursuit  of  gain,  by  which 
injustice  may  be  done  to  neutral  subjects,  and  national  quarrels 
produced  with  the  foreign  states  to  which  they  belong.  Here  is 
a  clear  American  vessel  and  cargo,  alleged  by  the  claimants 
themselves  to  be  such,  and  consequently  the  property  of  enemies 
at  that  time.  They  share  no  inconvenience  by  not  being  brought 
in  for  the  condemnation,  which  must  have  followed  if  it  were 
mere  American  property;  and  the  captors  fully  justify  them- 
selves to  the  law  of  their  own  country,  which  prescribes  the 
bringing  in,  by  showing  that  the  immediate  service  in  which 
they  were  engaged,  that  of  watching  the  enemy's  ship  of  war, 
'  2  Dodson,  p.  385. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      237 

The  President,  with  intent  to  encounter  her,  though  of  inferior 
force,  would  not  permit  them  to  part  with  any  of  their  own  crew 
to  carry  her  into  a  British  port.  Under  this  collision  of  duties 
nothing  was  left  but  to  destroy  her,  for  they  could  not,  con- 
sistently with  their  general  duty  to  their  own  country,  or  indeed 
its  express  injunctions,  permit  enemy's  property  to  sail  away 
unmolested.  If  impossible  to  bring  in,  their  next  duty  is  to 
destroy  enemy's  property.  Where  doubtful  whether  enemy's 
property,  and  impossible  to  bring  in,  no  such  obligation  arises, 
and  the  safe  and  proper  course  is  to  dismiss.  Where  it  is  neu- 
tral, the  act  of  destruction  cannot  be  justified  to  the  neutral 
owner,  by  the  gravest  importance  of  such  an  act  to  the  public 
service  of  the  captor's  own  state;  to  the  neutral  it  can  only  be 
justified,  under  any  such  circumstances,  by  a  full  restitution  in 
value.  These  are  rules  so  clear  in  principle  and  established  in 
practice,  that  they  require  neither  reasoning  nor  precedent  to 
illustrate  or  support  them.^ 

It  will  be  observed  that  not  only  the  captain  and  crew,  but  also  the 
baggage  were  taken  aboard  TJie  Endymion  before  the  enemy  prize 
was  destroyed,  although  Tlie  Endymion  was  at  that  very  moment 
"watching  the  enemy  ship  of  war,  TJie  President,  with  intent  to 
encounter  her." 

The  action  of  France  in  the  case  of  Tlie  Ludwig,  captured  during 
the  war  of  1870,  is  sometimes  pressed  into  service  in  defense  of  the 
destruction  of  neutral  prizes,  which  will  be  considered  later,  and 
the  case  is  only  referred  to  here  as  showing  the  generality  of  the 
rule  that  enemy  prizes  may  only  be  destroyed  if  they  cannot  be 
brought  into  port  for  adjudication.  It  appeared  that  the  French 
cruiser  Desaix  captured  three  German  vessels,  and  because  of  the 
large  number  of  prisoners  on  board  the  captain  destroyed  the  vessels 
as  he  considered  it  unsafe  to  spare  a  prize  crew  in  order  to  escort  the 
vessels  into  port.  A  claim  for  restitution  made  by  the  owners  of  the 
captured  vessels,  disallowed  in  first  instance,  was  likewise  disallowed 
on  appeal  because  it  was  held  that  ' '  from  the  ship 's  papers  and  from 
the  proceedings  it  appears  that  the  vessels  belonged  to  German  sub- 
jects, thus  making  them  good  and  valuable  prize,  that  the  destruction 
having  been  caused  by  force  majeure,  in  order  to  maintain  the  safety 
of  the  captain's  operations,  there  was  no  cause  to  restore  the  cap- 
tured property;  that  in  acting  as  they  had  done  they  had  no  doubt 
made  use  of  a  rigorous  right  but  one  provided  for  by  the  laws  of  war 
and  recommended  by  the  instructions  they  carried. ' '  ^ 

'  2  Dodson,  pp.  385-386. 

2  Barboux,  Jurisprudence  du  Conseil  des  Prises  pendant  la  guerre  de  1870-71, 
pp.  153  et  seq. 


238        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

It  is  interesting  to  note  in  this  connection  that  in  the  one  war 
to  which  Prussia  was  a  party  before  the  outbreak  of  the  war  of  1914 
the  North  German  Confederation,  of  which  Prussia  was  the  domi- 
nant member,  protested  against  the  destruction  of  enemy  prizes 
without  bringing  them  into  a  French  port,  there  to  be  passed  upon 
by  the  court  of  the  captor,  and  to  such  a  degree  was  the  Iron  and 
imperturbable  Chancellor  aroused  and  annoyed  by  this  violation  of 
international  law  on  the  part  of  France  that  he  considered  it  just 
ground  for  reprisals,  revoking  the  decree  of  July  18,  1870,  exempting 
unoffending  French  property  from  capture  and  confiscation.  Thus, 
Count  von  Bismarck  said : 

In  the  naval  warfare  the  French  have  likewise  scouted  inter- 
national law.  The  French  war-steamer  Desaix  has  destroyed, 
by  burning  or  sinking  on  the  high  seas,  three  German  merchant- 
men which  it  had  captured,  The  Ludwig,  The  Vorwdrts,  and 
The  Charlotte,  instead  of  taking  them  to  a  French  port  and 
obtaining  the  sentence  of  a  prize  court.  The  German  ships  will 
therefore  be  directed  to  make  reprisals  on  French  ships.' 

Whatever  may  be  the  right  of  a  captor  to  destroy  an  enemy  prize, 
it  is  and  has  long  been  the  practice  of  Nations  to  bring  the  prize  into 
port,  and  this  is  true  to  such  a  degree  that  the  late  Mr.  Hall  felt 
justified  in  saying  and  retaining  in  the  fourth  and  last  edition  of 
his  treatise  on  international  law  which  he  was  permitted  to  revise, 
that : 

Perhaps  the  only  occasions  on  which  enemy's  vessels  have 
been  systematically  destroyed,  apart  from  any  serious  difficulty 
in  otherwise  disposing  of  them,  were  during  the  American  revo- 
lutionary war  and  that  between  Great  Britain  and  the  United 
States  in  1812-14."  ^ 

The  case  of  The  Felicity  shows  that  Great  Britain  justified  the  sinking 
of  an  enemy  prize,  saving,  however,  the  captain,  crew,  and  baggage, 
when,  owing  to  adverse  circumstances,  the  vessel  could  not  be  brought 
into  port  and  passed  before  a  prize  court.  The  practice  of  the 
United  States  in  that  war  shows  that  it  not  only  permitted,  but  that 
it  enjoined  systematic  destruction  in  the  instructions  issued  to  Ameri- 
can commanders.  In  an  article  entitled  Why  Semmes  of  the  Alabama 
was  not  Tried,  written  by  John  A.  Bolles,  Solicitor  of  the  Navy,  and 

^  Count  Bismarck  to  Count  Bernstorflf  (communicated  to  Earl  Granville  by 
Count  Bernstorff,  January  16),  January  9,  1871,  British  and  Foreign  State 
Papers,  vol.  61,  p.  986-987. 

2  Hall's  International  Law,  4th  ed.,  p.  475. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     239 

published  in  the  Atlantic  Monthly  for  July,  1872,  that  well-informed 
and  fair-minded  writer  says  that,  although  the  earlier  records  are 
imperfect,  it  is  a  fact  that  * '  many  vessels  captured  in  the  War  of  the 
Revolution  were  destroyed  at  sea."^  Of  the  War  of  1812  he  thus 
speaks : 

Of  the  history  and  policy  of  the  later  period  we  have  abundant 
proofs.  Not  less  than  seventy-four  British  merchantmen  were 
captured,  and  destroyed  as  soon  as  captured,  under  express 
instructions  from  the  Navy  Department,  and  in  pursuance  of  a 
deliberate  purpose  and  plan,  without  any  attempt  or  intent  to 
send  or  bring  them  in  as  prizes  for  adjudication.  The  orders 
of  the  Department  upon  this  subject  are  numerous,  emphatic, 
and  carefully  prepared.^ 

Hr.  Bolles  cites  some  of  these  orders,  which  are  not  very  pleasant 
reading  to  Americans  of  today,  but  which  it  is  well  to  read  and  to 
ponder  before  embarking  upon  universal  condemnation  and  criticism. 
Some  of  these  orders  are  quoted  from  Mr.  Bolles'  article. 

The  great  object  is  the  destruction  of  the  commerce  of  the 
enemy,  and  the  bringing  into  port  the  prisoners,  in  order  to 
exchange  against  our  unfortunate  countrymen  who  may  fall  into 
his  hands.^ 

It  will  be  observed  that  this  very  first  order  cited  by  Mr.  Bolles 
shows  that  the  officers  and  crew  were  not  to  be  sunk  with  the  vessels, 
as  they  were  to  be  brought  into  port  in  order  to  be  exchanged  for 
their  countrymen  in  British  captivity. 

You  will,  therefore,  man  no  prize,  unless  the  value,  place  of 
capture,  and  other  favorable  circumstances  shall  render  safe 
arrival  morally  certain. 

You  will  not  agree  to  the  ransoming  of  any  prize. 

Grant  no  cartel,  nor  liberate  any  prisoners,  unless  under 
circumstances  of  extreme  and  unavoidable  necessity. 

You  will,  therefore,  unless  in  some  extraordinary  cases  that 
shall  clearly  warrant  an  exception,  destroy  all  you  capture;  and 
by  thus  retaining  your  crew  and  continuing  your  cruise,  your 
services  may  be  enhanced  tenfold." 

^  The  records  of  the  Revolutionary  War  are  fragmentary,  yet  they  show  that 
John  Paul  Jones,  the  first  American  sailor  and  with  whom  the  taking  of  prizes 
was  an  ordinary  occurrence,  removed  all  persons  on  board  before  destroying  a 
captured  vessel.  (See  Gardner  W.  Allen,  A  Naval  History  of  the  American 
devolution,  1913,  2  vols.,  vol.   1,  pp.   121,   124.) 

*  Atlantic  Monthly,  vol.  30,  p.  95. 

'Ihid.,  p.  96. 


240        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Your  own  sound  judgment  and  observation  will  sufficiently 
demonstrate  to  you  how  extremely  precarious  and  injurious  is 
the  attempt  to  send  in  a  prize,  unless  taken  very  near  a  friendly 
port,  and  under  the  most  favorable  circumstances.  .  .  .  Policy, 
interest,  and  duty  combine  to  dictate  the  destruction  of  all  cap- 
tures, with  the  above  exceptions. 

The  commerce  of  the  enemy  is  the  most  vulnerable  point  of 
the  enemy  we  can  attack,  and  its  destruction  the  main  object; 
and  to  this  end  all  your  efforts  should  be  directed.  Therefore, 
unless  your  prizes  should  be  very  valuable  and  near  a  friendly 
port,  it  will  be  imprudent  and  worse  than  useless  to  attempt  to 
send  them  in ;  the  chances  of  recapture  are  excessively  great ; 
the  crew,  the  safety  of  the  ship  under  your  command,  would  be 
diminished  and  endangered,  as  well  as  your  own  fame  and  the 
national  honor,  by  hazarding  a  battle  after  the  reduction  of  your 
officers  and  crew  by  manning  prizes.  In  every  point  of  view, 
then,  it  will  be  proper  to  destroy  what  you  capture,  except  valu- 
able and  compact  articles,  that  may  be  transshipped.  This  sys- 
tem gives  to  one  ship  the  force  of  many. 

A  single  cruiser,  if  ever  so  successful,  can  man  but  a  few 
prizes,  and  every  prize  is  a  serious  diminution  of  her  force;  but 
a  single  cruiser,  destroying  every  captured  vessel,  has  the  capacity 
of  continuing,  in  full  vigor,  her  destructive  power,  so  long  as 
her  provisions  and  stores  can  be  replenished,  either  from  friendly 
ports  or  from  the  vessels  captured.  .  .  .  Thus  has  a  single 
cruiser,  upon  ihe  destructive  plan,  the  power,  perhaps,  of  twenty 
acting  upon  pecuniary  views  alone;  .  .  .  and  thus  may  the 
employment  of  our  small  force  in  some  degree  compensate  for 
the  great  inequality  [of  our  force]  compared  with  that  of  the 
enemy.'- 

A  careful  examination  has  been  made  of  the  archives  of  the  Gov- 
ernment, without  finding  any  evidence  of  the  destruction  of  a  neutral 
prize  or  of  the  loss  of  captain,  crew,  or  passengers. 

Another  instance  of  the  systematic  destruction  of  enemy  prizes 
on  the  allegation  of  necessity,  likewise  cited  by  the  late  Mr.  Hall, 
who  was  accustomed  to  speak  of  his  American  cousins  with  candor 
if  not  with  kindness,  is  furnished  by  the  American  Civil  War,  and 
the  career  of  Captain  Semmes  of  the  Confederate  Navy  furnishes 
us  the  picture  of  the  naval  officer  sitting  as  a  prize  judge  upon  his 
quarter-deck,  dispensing  justice  under  what  must  be  considered  as 
difficult  and  trying  circumstances. 

However,  notwithstanding  the  most  searching  criticism  of  the 
actions  of  Captain  Semmes,  it  appears  that  he  did  not  destroy  a 

^Atlantic  Monthly,  vol.  30,  p.  96. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      241 

single  prize  without  first  removing  crew  and  passengers,  and  that 
when  he  could  not  accommodate  the  crew  and  passengers  of  the 
proposed  victim  he  released  it,  as  in  the  case  of  the  valuable  prize  of 
The  Ariel,  ' '  and  sent  her  and  her  large  number  of  her  passengers  on 
their  way  rejoicing."  Indeed,  this  man  of  the  seas,  whom  his  coun- 
trymen of  the  North  were  accustomed  to  look  upon  as  a  pirate,  even 
applied  the  same  rule  to  the  ease  of  the  warship.  Thus,  before  destroy- 
ing The  Hatteras,  a  Federal  war  vessel,  he  stated  that  ''every  living 
being  in  it  was  safely  conveyed  to  The  Alabama."  And  the  words  with 
which  he  sought  to  justify  his  conduct  have  lost  neither  point  nor 
application  with  the  lapse  of  time.  "We  were  making  war,"  he  said, 
"upon  the  enemy's  commerce,  not  upon  his  unarmed  seamen." 
After  this  offhand  and  blunt  statement  of  the  fundamental  principle 
of  naval  warfare,  he  mentioned  in  passing  the  reason  for  it :  "It  gave 
me  as  much  pleasure  to  treat  these  with  humanity  as  it  did  to  destroy 
his  ships." 

The  captain,  be  it  said  to  his  honor,  did  not  destroy  neutral 
prizes,  despite  the  greatest  of  temptations,  and  he  has  himself  reported 
his  prize  decisions.  As  captain  of  The  Sumter  and  The  Alabama  he 
had  occasion  to  sit  in  judgment  upon  some  seventy  cases  of  prize. 
In  a  note  to  his  Cases  on  International  Law  the  late  Freeman  Snow 
quotes  the  following  extracts  from  what  may  be  called  Semmes* 
Admiralty  Reports.  Many  others  might  be  added  to  the  same  effect, 
but  it  is  believed  that  these  are  amply  sufficient  for  present  purposes. 
Thus,  in  the  case  of  The  Lafayette,  Captain  Semmes,  sitting  as  prize 
judge,  decided: 

Ship  and  cargo  condemned.  The  cargo  of  this  ship  was  con- 
demned by  me  as  enemy's  property,  notwithstanding  there  were 
depositions  of  the  shippers  that  it  had  been  purchased  by  them 
on  neutral  account.  These  ex  parte  statements  are  precisely  such, 
as  every  unscrupulous  merchant  would  prepare,  to  deceive  his 
enemy  and  save  his  property  from  capture. ' '  ^ 

After  an  extended  consideration  of  the  case,  finding  the  presence 
of  fraud  and  that  the  neutrality  of  the  cargo  was  not  established, 
Captain  Semmes,  sitting  as  prize  judge,  thus  continued: 

3d  Phillimore,  599,  to  the  effect,  that  "further  proof"  is 
always  necessary  where  the  master  cannot  swear  to  the  owner- 
ship of  the  property  (as  in  this  case).  And  as  I  cannot  send 
my  prizes  in  for  adjudication,  I  must  of  necessity  condemn  in 
all  cases  where  "further  proof"  is  necessary,  since  the  granting 

^  Semmes,  Cruise  of  the  Alabama,  vol.  1,  p.  346;  Snow,  Cases  on  International 
Law  (Boston,  1893),  p.  520. 


242        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  "further  proof"  proceeds  on  the  presumption  that  the  neu- 
trality of  the  cargo  is  not  sufficiently  established ;  and  where 
the  neutrality  of  the  property  does  not  fully  appear  from  the 
ship's  papers  and  the  master's  deposition,  I  had  the  right  to  act 
upon  the  presumption  of  enemy's  property.' 

Again,  in  the  case  of  The  Express,  in  which  the  ship  and  the  cargo 
were  condemned.  Captain  Semmes,  sitting  as  prize  judge,  said : 

It  must  be  admitted  that  this  is  a  case  in  which,  perhaps,  a 
prize  court  would  grant  "further  proof";  but  as  I  cannot  do 
this,  and  as  a  distinct  neutral  character  is  not  impressed  upon 
the  property  by  former  evidence,  I  must  act  under  the  presump- 
tion of  law.    See  3d  Phill.,  p.  589.- 

<!;!aptain  Semmes'  method  did  not  pass  unchallenged  by  neutrals,  and 
Great  Britain  apparently  was  unable  to  reconcile  his  procedure  with 
that  of  Lord  Stowell,  as  appears  from  the  following  extract  from  the 
interview  with  the  doughty  captain  taken  from  The  Cape  Argus: 

You  English  people  won't  be  neighborly  enough  to  let  me 
bring  my  prizes  into  your  ports  and  get  them  condemned,  so 
that  I  am  obliged  to  sit  here  a  court  of  myself,  try  every  case, 
and  condemn  the  ships  I  take.^ 

So  far  the  question  of  the  destruction  of  neutral  prizes  has  only 
been  touched  upon  incidentally,  as  it  was  hitherto  the  purpose  to  show 
that  an  enemy  merchantman  was,  by  generally  recognized  principles 
of  international  law,  entitled  to  a  hearing  in  a  court  of  justice,  not 
in  its  own  behalf  but  in  behalf  of  the  neutral.  From  this  it  would 
appear  that  if,  as  a  general  rule,  an  enemy  prize  should  not  be  de- 
stroyed unless  in  exceptional  circumstances,  a  neutral  merchantman 
should  not  be  the  subject  of  destruction;  because  if  the  incidental 
interest  of  the  neutral  would  cause  an  enemy  ship  to  be  saved  and  to 
be  passed  before  the  prize  court,  complete  ownership  by  the  neutral 
would  entitle  the  vessel  in  all  cases  to  be  saved  and  to  be  passed  before 
a  prize  court;  or,  if  it  should  be  impossible  to  bring  the  vessel  into 
port,  that  it  be  released. 

A  very  careful  examination  has  been  made  of  the  practice  of 
Nations,  in  the  matter  of  the  destruction  of  prizes,  in  connection  with 
the  practice  of  the  United  States  when  it  not  only  permitted  but 
enjoined  destruction  of  enemy  prizes,  in  order  to  determine  if  pos- 

*  Semmes,  Cruise  of  the  Alabama,  vol.  1,  p.  346;  Snow,  Cases  of  International 
Lata    (Boston,   1893),  p.   520. 

2  Ibid.,  p.  167;  ibid.  *  Ibid.,  vol.  2,  p.  358;  ibid. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     243 

sible  whether  the  command  to  destroy  enemy  prizes  extended  in 
practice  to  the  destruction  of  neutral  prizes.  As  a  result  of  this 
examination  it  appears  that  the  destruction  of  the  neutral  prize 
is  a  thing  of  our  day,  and  that  as  a  system  it  dates  from  the  Russo- 
Japanese  "War.  It  is  believed  that  there  is  neither  a  rule  nor  a  prin- 
ciple of  international  law  permitting  the  destruction  of  neutral  prizes. 
The  commander  of  a  belligerent  vessel  destroying  a  neutral  prize  can 
indeed  plead  the  command  of  his  government,  but  his  government  is 
responsible  to  the  neutral  government  for  the  destruction;  because, 
in  the  absence  of  a  rule  or  principle  of  international  law  permitting 
destruction,  and  in  the  absence  of  the  consent  of  the  neutral  govern- 
ment to  the  act  of  destruction,  there  is  no  justification  which  can  be 
established  against  it. 

This  statement  may  be  made  with  the  greater  assurance  because 
the  question  was  long  and  hotly  debated  at  the  Second  Hague  Peace 
Conference  of  1907,  where  the  partisans  of  the  destruction  of  neutral 
prizes  sought  and  failed  to  obtain  a  recognition  of  the  right  to 
destroy  neutral  property  under  any  circumstances  and  where  they 
were  unable,  although  requested,  to  produce  an  unequivocal  authority 
other  than  the  act  of  Russia  in  its  war  with  Japan,  which  would 
justify  the  proposal  which  they  had  made.  At  the  London  Naval 
Conference  an  agreement  was  reached,  after  much  debate,  discussion, 
and  misgiving,  to  permit  the  destruction  of  a  neutral  prize  in  specifi- 
cally defined  cases,  stating,  however,  the  preservation  of  neutral  prize 
to  be  the  rule,  its  destruction  the  exception.  But  as  the  Declaration 
of  London  was  not  ratified  by  the  Powers,  and  never  has  been  and  is 
not  now  a  compact  of  the  Nations,  even  this  guarded  permission  does 
not  exist.  Therefore,  the  Nations  are  thrown  back  upon  international 
law  as  it  existed  before  the  Declaration  of  London  and  before  the 
outbreak  of  the  war.  That  law  does  not  contain  permission  on  the 
part  of  neutrals  that  their  property  upon  the  high  seas,  open  to  all 
and  subject  to  the  exclusive  jurisdiction  of  none,  may  be  destroyed, 
although  some  Nations  have  recently  claimed  the  right  to  do  so. 

A  reference  should  be  made  to  a  case  arising  in  the  Russo- 
Japanese  War  which  made  of  the  destruction  of  neutral  prizes  a 
burning  question  in  more  senses  than  one.  TJie  KnigJit  Commander 
was  a  British  ship,  stopped  by  a  Russian  cruiser  on  July  23,  1904, 
on  its  voyage  from  New  York  to  Yokohama  and  Kobe,  that  is  to  say, 
bound  from  a  neutral  to  a  belligerent  port.  The  vessel  was  con- 
sidered as  engaged  in  carrying  contraband,  as  its  cargo  consisted 
largely  of  railway  material  declared  to  be  contraband  by  Russia. 


244        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  vessel  was  set  on  fire  and  destroyed  by  the  Russian  cruiser.  The 
official  reason  given  for  this  action  was  "the  proximity  of  the  enemy's 
port,  the  lack  of  coal  on  board  the  vessel  to  enable  her  to  be  taken 
into  a  Russian  port  and  the  impossibility  of  supplying  her  with  coal 
from  one  of  the  Russian  cruisers  owing  to  the  high  seas  running 
at  the  time."  This  action  was  in  accordance  with  Article  21  of  the 
Russian  naval  prize  regulations,  which  reads: 

In  exceptional  cases,  when  the  preservation  of  a  captured 
vessel  appears  impossible  on  account  of  her  bad  condition  or 
entire  worthlessness,  the  danger  of  her  recapture  by  the  enemy, 
or  the  great  distance  or  blockade  of  ports,  or  else  on  account 
of  danger  threatening  the  ship  which  has  made  the  capture  or 
the  success  of  her  operations,  it  is  permissible  for  the  Com- 
mander, on  his  own  responsibility,  to  burn  or  sink  the  captured 
vessel,  after  he  has  taken  off  all  persons  on  board,  and  as  much 
of  the  cargo  as  possible,  and  arranged  for  the  safety  of  the 
vessel's  papers  and  any  other  objects  which  may  be  necessary 
for  throwing  light  on  the  case  at  the  inquiry  to  be  instituted 
in  accordance  with  the  procedure  in  prize  cases.^ 

It  is  to  be  observed  from  the  official  report  of  the  case  that  the  crew 
and  papers  were  taken  on  board  the  cruiser  before  the  vessel  was 
destroyed.  The  KnigJit  Commander  was  condemned  by  the  Russian 
Prize  Court  at  Vladivostok  on  August  16,  1904,  and  the  sentence 
was  affirmed  on  December  5,  1905,  by  the  Court  of  Appeals  of 
St.  Petersburg,  which  held  that  it  is  "impossible  to  agree  that  the 
destruction  of  a  neutral  vessel  was  contrary  to  the  principles  of 
international  law."  The  Russian  Government  has,  so  to  speak,  stood 
by  its  guns,  and  in  1908  declined  to  submit  the  case  to  arbitration. 

The  Knight  Commander,  while  it  is  the  leading,  is  not  the  only 
case,  because,  during  the  war  with  Japan,  Russia  sank,  in  addition, 
the  following  British  vessels:  St.  Kilda,  Oldhamia,  IkJiona,  and 
Hipsang,  in  all  five ;  two  German  vessels.  The  Thea  and  Tetartos;  and 
the  Danish  vessel  Prmcesse  Marier  In  each  instance  the  crew  were 
saved. 

In  the  case  of  The  Felicity,  an  enemy  prize.  Lord  Stowell  took 
occasion  to  consider,  in  passing,  the  case  of  the  destruction  of  a 
neutral  vessel,  saying  on  this  point : 

Where  it  is  neutral,  the  act  of  destruction  cannot  be  justi- 
fied to  the  neutral  owner,  by  the  gravest  importance  of  such  an 

*  Russian  and  Japanese  Prize  Cases    (edited  by  C.   J.   B.   Hurst;    London; 
Wyman  &  Sons,   1912-13),  2  vols.,  vol.   1,  pp.  315-316. 
'  Ibid.,  vol.  1,  pp.  21,  96,  145,  166,  188,  226,  276. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     245 

act  to  the  public  service  of  the  captor's  own  state;  to  the  neu- 
tral it  can  only  be  justified,  under  any  such  circumstances,  by  a 
full  restitution  in  value.  ^ 

His  Lordship  felt  justified  in  thus  concluding  his  remarks  on  this 
subject:  "These  are  rules  so  clear  in  principle  and  established  in 
practice,  that  they  require  neither  reasoning  nor  precedent  to  illus- 
trate or  support  them. ' ' '  Lord  Stowell  's  meaning  seems  to  be  that 
there  is  no  right  to  destroy  neutral  prize;  that  if  it  should  be 
destroyed  the  commission  of  the  wrong  would  not  create  the  right, 
but  the  absence  of  right  would  require  full  restitution.  In  the  pre- 
vious case  of  The  Acteon,^  decided  in  1815,  his  Lordship  was  called 
upon  to  consider  the  action  to  be  taken  by  the  court  because  of  the 
illegal  destruction  of  that  American  vessel.  On  this  phase  of  the 
subject  he  said: 

This  question  arises  on  the  act  of  destruction  of  a  valuable 
ship  and  cargo  by  one  of  his  Majesty's  cruisers.  On  the  part 
of  the  claimants,  restitution  has  been  demanded,  and  there  can 
be  no  doubt  that  they  are  entitled  to  receive  it;    .    .    . 

If  the  captor  has  been  guilty  of  no  wilful  misconduct,  but 
has  acted  from  error  and  mistake  only,  the  suffering  party  is 
still  entitled  to  full  compensation,  provided,  as  I  before  observed, 
he  has  not,  by  any  conduct  of  his  own,  contributed  to  the  loss. 
{The  Felicity,  2  Dod.,  p.  381.)  The  destruction  of  the  property 
by  the  captor  may  have  been  a  meritorious  act  towards  his  own 
government,  but  still  the  person  to  whom  the  property  belongs 
must  not  be  a  sufferer.  As  to  him,  it  is  an  injury  for  which 
he  is  entitled  to  redress  from  the  party  who  has  inflicted  it  upon 
him;  and  if  the  captor  has,  by  the  act  of  destruction,  conferred 
a  benefit  on  the  public,  he  must  look  to  the  government  for  his 
indemnity.  The  loss  must  not  be  permitted  to  fall  on  the  inno- 
cent sufferer.^ 

The  case  of  The  Acteon  was  carefully  argued  by  Dr.  Lushington,  then 
at  the  bar,  who  many  years  later  thus  commented  upon  it  from  the 
bench : 

The  act  of  destruction  of  the  ship  by  Captain  Capel  was 
in  itself  illegal,  even  if  the  vessel  was  liable  to  condemnation; 
it  could  only  be  justified  on  the  grounds  of  public  policy,  and 
for  illegal  acts  done  for  such  a  reason  responsibility  must  attach.* 

^  2  Dodson,  p.  387. 
» Ibid.,  p.  48. 
» Ibid.,  pp.  51-52. 

*  Spinks,  p.   217;    Roscoe,  Reports  of  Prize  Cases    (London,   1905),  vol.  2, 
pp.  473,  488. 


246        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

As  judge  and  as  a  worthy  successor  of  Lord  Stowell,  Dr.  Lushington 
felt  called  upon  to  express  his  views  in  a  case  of  neutral  prize  arising 
in  1855  out  of  the  Crimean  War,  and  on  the  point  in  question  he  said : 

We  must  bear  in  mind  the  wide  difference  between  the  deten- 
tion of  a  vessel  under  the  colours  of  the  enemy  or  under  neutral 
flags. 

The  destruction  of  a  vessel  under  hostile  colours  is  a  matter 
of  duty;  the  Court  may  condemn  on  proof  which  would  be 
inadmissible  or  wholly  irregular  in  the  instance  of  a  neutral 
vessel.  It  may  be  justifiable  or  even  praiseworthy  in  the  captors 
to  destroy  an  enemy's  vessel.  Indeed,  the  bringing  to  adjudica- 
tion at  all  of  an  enemy's  vessel  is  not  called  for  by  any  respect 
to  the  right  of  the  enemy  proprietor  where  there  is  no  neutral 
property  on  board.  But  for  totally  different  considerations, 
which  I  need  not  now  enter  upon,  where  a  vessel  under  neutral 
colours  is  detained,  she  has  the  right  to  be  brought  to  adjudica- 
tion according  to  the  regular  course  of  proceeding  in  the  Prize 
Court ;  and  it  is  the  very  first  duty  of  the  captor  to  bring  it  in, 
if  it  be  practicable. 

From  the  performance  of  this  duty  the  captor  can  be  exoner- 
ated only  by  showing  that  he  was  a  hond  fide  possessor,  and  that 
it  was  impossible  for  him  to  discharge  it.  No  excuse  for  him  as 
to  inconvenience  or  difficulty  can  be  admitted  as  between  captors 
and  claimants.  If  the  ship  be  lost,  that  fact  alone  is  no  answer ; 
the  captor  must  show  a  valid  cause  for  the  detention  as  well  as 
the  loss.  If  the  ship  be  destroyed  for  reasons  of  policy  alone, 
as  to  maintain  a  blockade  or  otherwise,  the  claimant  is  entitled 
to  costs  and  damages.  The  general  rule,  therefore,  is  that  if  a 
ship  under  neutral  colours  be  not  brought  to  a  competent  Court 
for  adjudication,  the  claimants  are,  as  against  the  captor,  entitled 
to  costs  and  damages. 

And  further  on  in  the  course  of  his  opinion  he  said: 

Indeed,  if  the  captor  doubt  his  power  to  bring  a  neutral 
vessel  to  adjudication,  it  is  his  duty,  under  ordinary  circum- 
stances, to  release  her.^ 

It  would  perhaps  be  too  much  to  say  that  the  destruction  of 
neutral  prize  is,  under  international  law  and  the  practice  of  Nations, 
forbidden  in  all  cases.  It  is,  however,  accurate  to  insist  that  it  is 
not  expressly  authorized.  It  is  further  believed  to  be  in  accordance 
with  the  facts  to  maintain  that,  before  the  Russo-Japanese  War,  the 
classification  of  captured  vessels  into  enemy  and  neutral  prizes  does 
not  appear  to  have  been  made ;  that  when  prizes  are  spoken  of  enemy 

^  Koscoe,  Reports  of  Prize  Cases,  vol.  2,  p.  477. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     247 

prizes  are  meant  if  we  are  to  judge  by  the  practice  of  Nations,  which 
had  hitherto  confined  itself  to  the  destruction  of  enemy  prizes,  and 
then  only  in  exceptional  cases  for  which  they  felt  specific  justifica- 
tion was  necessary;  and  that,  even  during  the  Russo-Japanese  "War, 
when  neutral  prizes  were  destroyed  by  Russia — not  under  a  claim 
that  international  law  permitted  it,  be  it  said,  but  that  it  was  not 
forbidden  by  international  law — the  officers  and  crew  in  every  case 
during  that  war  were  saved  from  destruction.  It  is  therefore  well 
within  the  mark  to  say  that,  before  the  outbreak  of  the  great  war  of 
1914,  there  were  no  instances  to  be  found  in  the  books  of  the  destruc- 
tion of  neutral  prizes  without  first  saving  the  officers  and  crew,  in- 
cluding passengers,  on  the  part  of  any  Nation  belonging  to  the  society 
of  civilized  Nations  and  claiming  the  right  to  sink  a  neutral  prize. 

Section  4.    Treatment  of  Armed  Merchant  Vessels  in  the 

Present  War 

From  the  attitude  of  the  British  Government  in  the  matter  of 
the  Prussian  Volunteer  Navj^,  we  would  be  prepared  to  expect  that 
British  authorities  would  not  regard  the  carrying  of  guns  for  purely 
defensive  purposes  as  a  resort  to  privateering  and  that  such  action 
on  their  part  would  not  be  inconsistent  with  the  Declaration  of  Paris 
abolishing  the  privateer.  On  March  26,  1913,  the  Right  Hon. 
Winston  Churchill,  then  First  Lord  of  the  Admiralty,  proposed,  as 
a  means  of  protection,  to  place  armament  upon  first-class  British 
liners  to  repel  the  attacks  of  armed  foreign  merchant  cruisers.  To  do 
this  certain  changes  were  made,  at  the  expense  of  the  owners,  in  the 
structure  of  the  vessels  to  fit  them  for  the  carriage  of  guns,  and  the 
guns  were  loaned,  the  ammunition  supplied,  and  the  gun  crews  trained 
at  the  expense  of  the  Government.  The  vessels  thus  fitted  out  were, 
in  the  contemplation  of  the  Government,  to  continue  as  a  part  of 
the  merchant  marine.  They  were  to  defend  themselves  against,  not 
to  provoke,  attack,  and  they  were  to  be  under  their  own  officers,  not 
under  commissioned  officers  of  the  Government.  The  First  Lord  of 
the  Admiralty  justified  this  action  on  the  ground  that  certain  of  the 
great  Powers  claimed  the  right  to  convert  merchant  vessels  into  armed 
cruisers  not  only  in  home  ports  but  upon  the  high  seas,  if  necessary  or 
convenient,  and  that  there  was  reason  to  believe  that  a  considerable 
number  of  these  vessels  would  be  converted  into  armed  ships.  In  this 
event,  the  food-carrying  liners  and  vessels  carrying  raw  materials 
found  in  the  well-known  trade  routes  "would  be  at  the  mercy  of 


248        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

any  foreign  liner  carrying  one  effective  gun  and  a  few  rounds  of 
ammunition"  if  the  British  vessels  did  not  carry  an  armament  to 
ward  off  attack.  The  First  Lord  of  the  Admiralty  regretted  the 
need  of  the  measure  he  was  advocating,  saying  that:  "No  one  can 
pretend  to  view  these  measures  without  regret,  or  without  hoping 
that  the  period  of  retrogression  all  over  the  world  which  has  rendered 
them  necessary,  may  be  succeeded  by  days  of  broader  international 
confidence  and  agreement,  than  those  through  Avhich  we  are  now 
passing."  ^ 

Early  in  August,  1914,  it  was  announced  that  British  vessels  would 
enter  American  ports  carrying  a  light  armament  and  their  Govern- 
ment asked  to  have  them  treated  as  merchantmen.  Great  Britain  was 
anxious  to  learn  the  attitude  of  the  United  States  "in  view  of  the  fact 
that  a  number  of  British  armed  merchantmen  will  now  be  visiting 
United  States  ports." 

The  reason  for  which  these  vessels  were  armed  was  not  left  to 
speculation,  as  in  a  memorandum  from  the  British  Embassy  dated 
September  9,  1914,  the  British  Government,  notwithstanding  Mr. 
Winston  Churchill's  announcement  a  year  previously,  justified  the 
armament  of  merchant  ships  because  of  the  illegal  conduct  of  Ger- 
many.   Thus,  the  memorandum  says : 

The  German  Government  have  openly  entered  upon  the  policy 
of  arming  merchant  ships  as  commerce  destroyers  and  even  claim 
the  right  to  carry  out  the  process  of  arming  and  equipping  such 
merchant  ships  in  neutral  harbours  or  on  the  high  seas.  ^ 

It  is  immaterial  for  present  purposes  to  stop  to  consider  whether 
this  statement  be  true  or  not,  as  the  question  is  one  of  retaliation, 
not  one  of  right.    Thus: 

It  is  in  consequence  of  this  that  the  British  Admiralty  have 
been  compelled,  in  accordance  with  the  practice  followed  in  the 
great  wars  of  history,  to  arm  a  certain  number  of  British  mer- 
chant ships  for  self-defence  only.^ 

The  British  Embassy  considered  the  action  legal  on  its  part,  although 
it  intimated  that  this  action  would  not  have  been  taken  unless  Ger- 
many had  already  armed  merchant  ships  as  commerce  destroyers 
and  had  illegally  converted  them  into  cruisers  in  neutral  ports  and 
on  the  high  seas.    In  the  final  paragraph  of  the  memorandum  from 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  320. 

2  Ibid.,  July,  1915,  p.  232. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      249 

which  a  quotation  has  already  been  made,  the  Embassy  thus  justi- 
fies the  arming  of  merchant  ships  and  points  out  the  real  distinc- 
tion between  a  merchant  ship,  on  the  one  hand,  armed  for  purely 
defensive  purposes,  and  an  auxiliary  cruiser,  on  the  other,  armed  for 
aggressive  purposes: 

A  merchant  vessel  armed  purely  for  self-defence  is  therefore 
entitled  under  international  law  to  enjoy  the  status  of  a  peace- 
ful trading  ship  in  neutral  ports  and  His  Majesty's  Government 
do  not  ask  for  better  treatment  for  British  merchant  ships  in 
this  respect  than  might  be  accorded  to  those  of  other  Powers. 
They  consider  that  only  those  merchant  ships  which  are  intended 
for  use  as  cruisers  should  be  treated  as  ships  of  war  and  that  the 
question  whether  a  particular  ship  carrying  an  armament  is 
intended  for  offensive  or  defensive  action  must  be  decided  by 
the  simple  criterion  whether  she  is  engaged  in  ordinary  com- 
merce and  embarking  cargo  and  passengers  in  the  ordinary  way. 
If  so,  there  is  no  rule  in  international  law  that  would  justify 
such  vessel  even  if  armed  being  treated  otherwise  than  as  a 
peaceful  trader.' 

The  Government  of  the  United  States  was  clear  that  a  merchant- 
man, frequenting  American  waters,  subject  to  requisition  by  a  bellig- 
erent Government  and  carrying  an  armament  which  could  properly 
be  considered  offensive  and  which  it  was  the  purpose  of  the  vessel 
to  use  offensively,  could  not  be  treated  as  an  ordinary  merchantman ; 
but,  on  the  other  hand,  it  felt  and  stated  that  the  presence  of  arma- 
ment on  board  a  merchant  vessel  of  this  kind  for  a  purely  defensive 
purpose  did  not  convert  such  a  merchantman  into  a  man-of-war,  and 
that  such  a  merchantman  could  not  be  allowed  the  belligerent  right 
of  visit  and  search  upon  the  high  seas,  which  is  a  right  exclusively 
belonging  to  the  public  armed  vessels  of  a  belligerent.  It  was  there- 
fore not  satisfied  with  the  mere  fact  that  the  armament  was  stated  to  be 
for  defense,  not  for  offense.  It  required  and  received  a  solemn  assur- 
ance from  the  British  Government  that  a  British  merchantman  en- 
joying the  hospitality  of  the  United  States  and  supplied  with  an 
armament  declared  to  be  defensive,  should  not,  upon  reaching  the 
high  seas,  use  that  armament  for  offensive  purposes  and  should  not 
convert  itself  into  a  man-of-war  acting  under  commission  during  the 
homeward  voyage.  On  September  19,  1914,  the  Department  of  State 
issued  a  circular  on  the  subject,  of  which  the  first  three  paragraphs 
are  quoted  as  showing  the  attitude  which  the  United  States  as  a 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  233. 


250        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

neutral  took  at  the  beginning  of  the  war  and  maintained  through- 
out the  entire  period  of  its  neutrality: 

A.  A  merchant  vessel  of  belligerent  nationality  may  cany 
an  armament  and  ammunition  for  the  sole  purpose  of  defense 
without  acquiring  the  character  of  a  ship  of  war. 

B.  The  presence  of  an  armament  and  ammunition  on  board 
a  merchant  vessel  creates  a  presumption  that  the  armament  is 
for  oft'ensive  purposes,  but  the  OAvners  or  agents  may  overcome 
this  presumption  by  evidence  showing  that  the  vessel  carries 
armament  solely  for  defense. 

C.  Evidence  necessary  to  establish  the  fact  that  the  arma- 
ment is  solely  for  defense  and  will  not  be  used  offensively, 
whether  the  armament  be  mounted  or  stowed  below,  must  be 
presented  in  each  case  independently  at  an  official  investigation. 
The  result  of  the  investigation  must  show  conclusively  that  the 
armament  is  not  intended  for,  and  will  not  be  used  in,  offensive 
operations. 

Indications  that  the  armament  will  not  be  used  offensively 
are: 

1.  That  the  caliber  of  the  guns  carried  does  not  exceed  six 
inches. 

2.  That  the  guns  and  small  arms  carried  are  few  in  number. 

3.  That  no  guns  are  mounted  on  the  forward  part  of  the 
vessel. 

4.  That  the  quantity  of  ammunition  carried  is  small. 

5.  That  the  vessel  is  manned  by  its  usual  crew,  and  the 
officers  are  the  same  as  those  on  board  before  war  was  declared. 

6.  That  the  vessel  intends  to  and  actually  does  clear  for  a 
port  lying  in  its  usual  trade  route,  or  a  port  indicating  its  pur- 
pose to  continue  in  the  same  trade  in  which  it  w£L8  engaged 
before  war  was  declared. 

7.  That  the  vessel  takes  on  board  fuel  and  supplies  sufficient 
only  to  carry  it  to  its  port  of  destination,  or  the  same  quantity 
substantially  which  it  has  been  accustomed  to  take  for  a  voyage 
before  war  was  declared. 

8.  That  the  cargo  of  the  vessel  consists  of  articles  of  com- 
merce unsuited  for  the  use  of  a  ship  of  war  in  operations  against 
an  enemy. 

9.  That  the  vessel  carries  passengers  who  are  as  a  whole  un- 
fitted to  enter  the  military  or  naval  service  of  the  belligerent 
whose  flag  the  vessel  flies,  or  of  any  of  its  allies,  and  particu- 
larly if  the  passenger  list  includes  women  and  children. 

lb.    That  the  speed  of  the  ship  is  slow.^ 

It  may  perhaps  be  said,  in  this  connection,  that  the  principle 
applied  in  the  case  of  a  merchant  ship  carrying  armament  for  defen- 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  234-235. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      251 

give  purposes  was  precisely  the  principle  applied  by  the  United 
States  on  the  later  occasion  to  the  case  of  the  submarine  DeutscJiland, 
which  twice  entered  American  jurisdiction,  and  was  declared  to  be 
a  merchantman  because  it  was  without  the  means  of  waging  offen- 
sive war,  contrary  to  the  contentions  of  the  Allied  Governments. 
This  action  on  the  part  of  the  British  Government,  concurred  in 
by  the  Department  of  State  in  its  circular  of  September  19,  1914, 
did  not  pass  without  notice  by  and  protest  from  the  Imperial  Ger- 
man Government,  A  memorandum  dated  October  13,  1914,  was 
handed  to  the  American  Ambassador  to  Berlin,  in  which  the  German 
Foreign  Office  stated  that  the  ruling  of  the  United  States  was  incon- 
sistent with  neutrality  and  that  the  arming  of  merchant  vessels  was 
for  the  purpose  of  resisting  German  cruisers,  which  was  illegal,  and 
that  armed  merchantmen,  if  admitted  at  all  within  neutral  ports, 
should  only  be  treated  as  men-of-war.  As  this  very  brief  memoran- 
dum states,  at  the  very  beginning  of  the  controversy,  in  clear,  pre- 
cise and  unmistakable  terms,  the  attitude  which  the  Imperial  Ger- 
man Government  has  maintained  throughout  the  controversy,  this 
portion  of  it  is  quoted  in  full : 

The  equipment  of  British  merchant  vessels  with  artillery  is 
for  the  purpose  of  making  armed  resistance  against  German 
cruisers.  Resistance  of  this  sort  is  contrary  to  international  law, 
because  in  a  military  sense  a  merchant  vessel  is  not  permitted 
to  defend  itself  against  a  war  vessel.  ...  If  the  Government 
of  the  United  States  considers  that  it  fulfills  its  duty  as  a  neu- 
tral nation  by  confining  the  admission  of  armed  merchant  ships 
to  such  ships  as  are  equipped  for  defensive  purposes  only,  it  is 
pointed  out  that  so  far  as  determining  the  warlike  character 
of  a  ship  is  concerned,  the  distinction  between  the  defensive  and 
offensive  is  irrelevant.  The  destination  of  a  ship  for  use  of 
any  kind  in  war  is  conclusive,  and  restrictions  as  to  the  extent 
of  armament  afford  no  guarantee  that  ships  armed  for  defensive 
purposes  only  will  not  be  used  for  offensive  purposes  under  cer- 
tain circumstances.^ 

The  United  States  was  unable  to  accept  this  point  of  view,  and  in 
an  instruction  to  the  American  Ambassador  to  Berlin,  dated  Novem- 
ber 7,  1914,  Acting  Secretary  of  State  Lansing  replied  at  length 
justifying  the  contentions  of  the  American  Government.  In  the  first 
place,  he  appealed  to  the  practice  of  Nations  and  the  opinion  of 
publicists,  saying: 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  238;  ibid.,  October,  1916,  p.  321. 


252        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  practice  of  a  majority  of  nations  and  the  consensus  of 
opinion  by  the  leading  authorities  on  international  law,  includ- 
ing many  German  writers,  support  the  proposition  that  mer- 
chant vessels  may  arm  for  defense  without  losing  their  private 
character  and  that  they  may  employ  such  armament  against 
hostile  attack  without  contravening  the  principles  of  inter- 
national law.^ 

In  the  next  place,  he  pointed  out  the  attendant  circumstances  which 
would,  in  the  opinion  of  the  United  States,  raise  a  conclusive  pre- 
sumption that  the  armament  was  to  be  used  solely  for  defensive 
purposes : 

This  Government  considers  that  in  permitting  a  private  ves- 
sel having  a  general  cargo,  a  customary  amount  of  fuel,  an 
average  crew,  and  passengers  of  both  sexes  on  board,  and  carry- 
ing a  small  armament  and  a  small  amount  of  ammunition,  to 
enjoy  the  hospitality  of  an  American  port  as  a  merchant  vessel, 
it  is  in  no  way  violating  its  duty  as  a  neutral/ 

From  the  attitude  of  the  Imperial  German  Government,  Mr,  Lan- 
sing was  obliged  to  recognize  that  there  might  be  a  difference  of 
opinion  on  this  point,  that  the  admission  of  vessels  with  defensive 
armament  to  the  jurisdiction  of  the  United  States  would  give  rise  to 
complaint,  and  that,  in  the  interest  of  friendly  relations,  it  was  the 
part  of  wisdom  to  prevent  such  questions  from  arising.  He  therefore 
informed  the  Imperial  Government  that: 

This  Government,  as  soon  as  a  case  arose,  while  frankly 
admitting  the  right  of  a  merchant  vessel  to  carry  a  defensive 
armament,  expressed  its  disapprobation  of  a  practice  which  com- 
pelled it  to  pass  upon  a  vessel's  intended  use,  which  opinion  if 
proven  subsequently  to  be  erroneous  might  constitute  a  ground 
for  a  charge  of  unneutral  conduct.' 

Because  of  this  action  on  the  part  of  the  United  States  he  was 
able  to  inform  the  German  Government  that:  "As  a  result  of  these 
fepresentations  no  merchant  vessels  with  armaments  have  visited  the 
ports  of  the  United  States  since  the  10th  of  September.'"  He 
was  further  able  to  assure  the  German  Government  that:  "In  fact 
from  the  beginning  of  the  European  war  but  two  armed  private 
vessels  have  entered  or  cleared  from  ports  of  this  country,  and  as 
to  these  vessels  their  character  as  merchant  vessels  was  conclusively 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  239. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      253 

established."^  In  the  last  paragraph  of  the  note,  after  directing 
the  American  Ambassador  to  bring  these  views  to  the  notice  of  the 
German  Government,  he  instructed  the  Ambassador  to  "express  the 
hope  that  they  will  also  prevent  their  merchant  vessels  from  enter- 
ing the  ports  of  the  United  States  carrying  armaments  even  for 
defensive  purposes  though  they  may  possess  the  right  to  do  so  by 
the  rules  of  international  law.^ 

It  was  one  thing,  however,  to  consider  vessels  with  a  defensive 
armament  as  merchant  vessels  and  to  treat  them  as  such  if  they 
entered  American  jurisdiction;  it  was  an  entirely  different  matter 
to  secure  from  Germany  their  recognition  and  treatment  upon  the 
high  seas  as  merchant  vessels,  because,  although  all  Nations  admit 
that  the  high  seas  are  a  common  highway  to  all,  each  endeavors  to 
apply  its  own  conception  of  international  law  to  the  wayfarer  found 
on  the  highway.  There  would  have  been  little  or  no  difficulty  but 
for  the  submarine.  In  his  instruction  to  the  American  Ambassador 
dated  May  13,  1915,  concerning  the  destruction  of  The  Lusitania  with- 
out warning,  and  without  an  attempt  to  save  the  lives  of  passengers 
and  crew.  Secretary  Bryan,  speaking  for  the  United  States,  said  that  : 

It  assumes,  on  the  contrary,  that  the  Imperial  Government 
accept,  as  of  course,  the  rule  that  the  lives  of  noncombatants, 
whether  they  be  of  neutral  citizenship  or  citizens  of  one  of  the 
nations  at  war,  cannot  lawfully  or  rightfully  be  put  in  jeopardy 
by  the  capture  or  destruction  of  an  unarmed  merchantman,  and 
recognize  also,  as  all  other  nations  do,  the  obligation  to  take 
the  usual  precaution  of  visit  and  search  to  ascertain  whether 
a  suspected  merchantman  is  in  fact  of  belligerent  nationality 
or  is  in  fact  carrying  contraband  of  war  under  a  neutral  flag.^ 

The  note  then  went  to  the  root  of  the  matter,  stating  that  the  objec- 
tion of  the  United  States  to  the  use  of  the  submarine  "lies  in  the 
practical  impossibility  of  employing  submarines  in  the  destruction 
of  commerce  without  disregarding  those  rules  of  fairness,  reason, 
justice,  and  humanity  which  all  modern  opinion  regards  as  impera- 
tive." Lest  this  statement  should  appear  to  be  too  general.  Secretary 
Bryan  pointed  out  specifically  the  reasons  why,  in  the  opinion  of 
the  Government  of  the  United  States,  the  submarine  could  not  be 
considered  as  a  legitimate  agent  of  warfare.    Thus : 

It  is  practically  impossible  for  the  officers  of  a  submarine 

^  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  pp.  239-240. 
2  Ibid.,  p.  131. 


254        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

to  visit  a  merchantman  at  sea  and  examine  her  papers  and 
cargo.  It  is  practically  impossible  for  them  to  make  a  prize  of 
her ;  and,  if  they  cannot  put  a  prize  crew  on  board  of  her,  they 
cannot  sink  her  without  leaving  her  crew  and  all  on  board  of 
her  to  the  mercy  of  the  sea  in  her  small  boats.  These  facts  it  is 
understood  the  Imperial  German  Government  frankly  admit. 
We  are  informed  that  in  the  instances  of  which  we  have  spoken 
time  enough  for  even  that  poor  measure  of  safety  was  not  given, 
and  in  at  least  two  of  the  cases  cited  not  so  much  as  a  warning 
was  received.  Manifestly  submarines  cannot  be  used  against 
merchantmen,  as  the  last  few  weeks  have  shown,  without  an 
inevitable  violation  of  many  sacred  principles  of  justice  and 
humanity.' 

In  the  reply  of  the  German  Secretary  for  Foreign  Affairs  dated 
May  28,  1915,  it  was  asserted  that  The  Lusitania  was  armed  and  that 
the  British  merchantmen  not  only  sheltered  themselves  behind  neu- 
tral flags  and  markings  but  that,  Avhen  so  disguised,  they  attacked 
German  submarines  "by  ramming  them";  that  "high  rewards  have 
been  offered  by  the  British  Government  as  a  special  incentive  for 
the  destruction  of  the  submarines  by  merchant  vessels,  and  such 
rewards  have  already  been  paid  out."^  In  this  reply  the  justifica- 
tion later  so  common  is  indicated  that  The  Lusitania  need  not  be 
visited  and  searched  because  carrying  armament  and  because  of  the 
danger  to  the  German  submarine  by  "ramming." 

In  the  note  of  the  Imperial  Secretary,  dated  June  1,  1915,  the 
justification  given  for  the  attack  on  the  American  vessel  Gulflight 
is  more  specific.  The  commander  of  the  submarine  thought,  from  the 
distance  and  attendant  circumstances,  that  The  Gulflight,  accompanied 
by  two  small  vessels,  was  an  English  vessel  of  such  considerable  value 
as  to  be  convoyed.  "Since  such  vessels,"  the  note  says,  "are  regu- 
larly armed,  the  submarine  could  not  approach  the  steamer  on  the 
surface  of  the  water  without  running  the  danger  of  destruction."' 
Again,  it  appears  that  the  commander  was  unwilling  to  risk  the 
safety  of  his  little  craft  by  approaching  the  steamer  in  order  to 
determine  whether  it  was  or  was  not  neutral.  "The  commander," 
the  note  runs,  ' '  could  see  no  neutral  markings  on  it  of  any  kind — that 
is,  distinctive  marks  painted  on  the  freeboard,  recognizable  at  a  dis- 
tance, such  as  are  now  usual  on  neutral  ships  in  the  English  zone  of 
naval  warfare."  The  upshot  was  that  the  commander,  without  inves- 
tigation, for  the  reasons  advanced  by  his  Government,  came  to  the 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  131. 

2  Ibid.,  p.  135.  *Ibid.,  p.  137. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    255 

conclusion  "that  he  had  to  deal  with  an  English  steamer  and  attacked 
submerged. ' '  ^  The  torpedo,  it  seems,  was  discharged  inconveniently 
near  one  of  the  ships  which,  to  quote  the  note,  *'at  once  rapidly 
approached  the  point  of  firing. "  ^  By  this  action,  to  quote  again  the 
note,  * '  the  submarine  was  forced  to  go  to  a  great  depth  to  avoid  being 
rammed,"^  and  this  action  on  the  part  of  the  surface  vessel  appar- 
ently convinced  the  German  commander  that  it  was  English. 

We  here  have  two  justifications  of  the  failure  to  visit  and  search 
the  vessel,  the  danger  to  the  submarine  at  the  hands  of  an  armed  vessel, 
and  the  danger  to  the  submarine  because  of  the  fear  of  ramming. 
A  cruiser  would  have  visited  and  searched  and  let  the  vessel  go  if 
it  had  been  neutral;  and  a  cruiser  would  have  visited  and  searched 
a  suspected  vessel  and,  if  found  to  be  that  of  the  enemy,  would  have 
taken  aboard  the  officers  and  crew,  as  German  surface  vessels,  notably 
The  Emden,  The  Karlsruhe,  The  Eitel  Friedrich,  had  done,  before 
sinking  it. 

The  note  from  which  these  extracts  have  been  made,  overlooked 
visit  and  search  and  only  incidentally  explained  its  absence.  But  the 
United  States  was  not  to  be  put  off  with  disquisitions  about  armed 
vessels,  the  presence  or  absence  of  neutral  markings — which  in  them- 
selves were  humiliating — and  with  the  hardship  involved  in  forcing 
the  submarine  to  go  to  a  great  depth  in  order  to  avoid  being  rammed. 
The  question  was  not  one  of  method;  it  was  one  of  principle,  and 
the  principle  was  the  necessity  of  visit  and  search  as  a  prerequisite 
to  any  action  taken  against  a  merchant  vessel,  whether  of  an  enemy 
or  of  a  neutral  Power.  Therefore,  in  the  second  Lusitania  note  of 
June  9,  1915,  Secretary  Lansing  brought  visit  and  search  to  the  fore 
and  insisted  that  the  requirements  of  international  law  in  that  respect 
be  complied  with.  In  the  first  place,  he  dealt  with  The  Falaha,  a 
British  passenger  vessel  which  was  sunk  without  regard  to  the  safety 
of  the  lives  of  those  on  board,  and  on  this  point  Mr.  Lansing  stated 
that: 

The  Government  of  the  United  States  is  surprised  to  find 
the  Imperial  German  Government  contending  that  an  effort  on 
the  part  of  a  merchantman  to  escape  capture  and  secure  assist- 
ance alters  the  obligation  of  the  officer  seeking  to  make  the  cap- 
ture in  respect  of  the  safety  of  the  lives  of  those  on  board  the 
merchantman,  although  the  vessel  has  ceased  her  attempt  to 
escape  when  torpedoed.- 

'  OflScial  text,  American  Journal  of  International  Law,  Special  Supplement, 
J;Uy,  1915,  p.  137. 
2/6td.,  p.  139. 


256        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

According  to  the  German  theory  of  nonresistance  on  the  part  of 
a  merchant  vessel,  an  attempt  to  escape  was  a  violation  of  inter- 
national law  and  placed  the  vessel  beyond  the  pale  of  protection. 
It  is  not,  as  has  been  shown,  the -theory  or  practice  of  Nations,  a  view 
correctly  and  concisely  stated  by  Secretary  Lansing  in  the  follow- 
ing passage: 

Nothing  but  actual  forcible  resistance  or  continued  efforts 
to  escape  by  flight  when  ordered  to  stop  for  the  purpose  of  visit 
on  the  part  of  the  merchantman  has  ever  been  held  to  forfeit 
the  lives  of  her  passengers  or  crew/ 

Taken  in  connection  with  the  circumstances  of  the  case,  this  state- 
ment is  correct;  but  if  standing  alone  it  is  open  to  misconception, 
because  neither  resistance  nor  flight  forfeits  life,  although  either  one 
or  the  other  gives  the  right  to  use  force  to  overcome  resistance  or 
bring  the  flight  to  an  end,  in  the  course  of  which  life,  as  a  conse- 
quence of  the  use  of  force,  may  be  lost.  That  this  was  the  purpose 
which  Secretary  Lansing  had  in  mind  is  shown  by  a  later  passage 
in  the  same  note,  in  which  he  says: 

Only  her  actual  resistance  to  capture  or  refusal  to  stop  when 
ordered  to  do  so  for  the  purpose  of  visit  could  have  afforded  the 
commander  of  the  submarine  any  justification  for  so  much  as 
putting  the  lives  of  those  on  board  the  ship  in  jeopardy.^ 

Germany's  contention  was  clearly  stated  and  carried  a  step  fur- 
ther in  the  reply  of  the  Imperial  Secretary  for  Foreign  Affairs  on 
July  8,  1915,  to  Secretary  Lansing's  note  of  June  9th.  The  action 
of  Great  Britain  in  permitting  its  merchantmen  to  arm  was  clearly 
stated  to  be  a  violation  of  international  law,  the  distinctions  between 
merchantmen  and  vessels  of  war  were  declared  to  be  thereby  ' '  obliter- 
ated," the  rewards  to  ram  submarines  were  again  mentioned,  and  the 
danger  to  neutrals  traveling  upon  English  vessels  was  pointed  out 
and  illustrated  by  the  fate  of  The  Lusitania. 

Now,  the  meaning  of  all  this  is  very  clear.  The  submarine,  by 
reason  and  because  of  its  frailty,  was  not  able,  as  was  a  surface 
cruiser,  to  visit  and  search  a  merchant  vessel  and  by  visit  and  search 
to  ascertain  its  nationality,  its  cargo,  its  destination.  Therefore,  the 
fact  that  English  merchant  vessels  were  armed  for  defense,  that  they 
endeavored  to  destroy  the  submarine  whenever  they  located  it  either 

'  OflScial  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  139. 
2  Ibid.,  p.  140. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    257 

by  firing  a  gun  or  ramming  it — actions  which  would  be  impossible 
or  of  no  effect  in  the  case  of  a  surface  vessel — are  pleaded  in  justifica- 
tion of  the  omission  to  comply  with  the  law  and  practice  of  Nations 
requiring  visit  and  search  in  all  such  cases.  And,  because  of  its 
size,  the  submarine  was  to  be  freed  from  the  requirement  of  putting 
the  officers,  crew,  and  passengers  in  a  place  of  safety  before  destroy- 
ing the  merchant  vessel,  if  destruction  was  to  be  permitted.  A  false 
analogy  was  stretched  to  the  breaking  point  in  order  to  keep  American 
citizens  from  traveling  upon  British  ships,  armed  or  unarmed.  With- 
out directly  denying  to  Americans  the  right  to  travel  on  a  belliger- 
ent merchantman,  the  Imperial  German  Government  denied  that, 
in  so  doing,  "American  citizens  can  protect  an  enemy  ship  through 
the  mere  fact  of  their  presence  on  board."  ^  This  is  not  and  never 
was  the  contention  of  the  United  States.  A  merchant  vessel,  with  or 
without  the  presence  of  Americans,  was,  in  the  opinion  of  the  Ameri- 
can Government,  entitled  to  have  its  character  determined  by  visit  and 
search,  and  if  it  was  permissible,  in  view  of  all  the  circumstances, 
to  destroy  it,  that,  whether  Americans  were  present  or  not,  officers, 
crew,  and  passengers  should  be  removed  and  put  in  a  place  of  safety, 
and  their  effects  saved  if  possible,  before  the  vessel  was  destroyed. 
The  presence  or  absence,  therefore,  of  Americans  was  immaterial 
from  the  American  point  of  view,  except  that  their  presence  and  their 
death  through  the  misconduct  of  German  commanders  made  it  the 
duty,  as  it  would  otherwise  have  been  the  right,  to  protest  against 
the  violation  of  international  law  in  which  all  Nations  have  an  equal 
interest. 

But  if  American  citizens  came  to  grief  it  was  their  own  fault, 
for  "Germany  merely  followed  England's  example  when  it  declared 
part  of  the  high  seas  an  area  of  war, ' '  ^  and  the  false  analogy  which 
has  already  been  mentioned,  but  which  it  is  important  to  make  clear, 
is  contained  in  the  following  passage: 

Consequently  accidents  suffered  by  neutrals  on  enemy  ships 
in  this  area  of  war  cannot  well  be  judged  differently  from  acci- 
dents to  which  neutrals  are  at  all  times  exposed  at  the  seat  of 
war  on  land  when  they  betake  themselves  into  dangerous  locali- 
ties in  spite  of  previous  warning.^ 

If  the  Imperial  German  Government  is  really  a  partisan  of  the  free- 
dom of  the  seas,  it  cannot  maintain  that  it  has  a  right  in  any  part 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
July,  1915,  p.  153. 


258        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

to  the  exclusion  of  other  countries,  and  the  question  at  issue  is  only 
obscured  by  suggesting  an  analogy  between  land  and  maritime  war- 
fare. In  the  former  an  army  occupies  territory  to  the  exclusion  of 
all  other  authority,  and  anyone  coming  within  the  range  of  occupa- 
tion subjects  himself  to  this  authority  and  to  the  consequence  of  his 
presence;  whereas,  in  the  latter,  the  portion  declared  to  be  a  war 
zone  is  not  at  the  expense  of  the  belligerent,  and  if  occupied  or  if 
entrance  is  made  dangerous  or  impossible  it  is  not  occupation  at  the 
expense  of  its  enemy,  for  its  enemy  does  not  own  the  high  seas,  but 
it  is  occupation  at  the  expense  of  other  countries  and  it  is  a  danger 
created  and  suffered  at  the  expense  of  others.  A  person  entering, 
•with  warning  and  without  permission,  occupied  territory  on  land  is 
a  trespasser.  He  is  not  a  trespasser  on  the  high  seas,  which  are  as 
much  his  as  they  can  be  the  property  of  anyone. 

In  any  event,  the  United  States  protested,  as  has  been  pointed 
out,  against  making  of  the  North  Sea  a  military  area,  just  as  it  did 
against  the  action  of  Germany  in  making  of  the  ■waters  surrounding 
Great  Britain  a  war  zone,  and  not  having  conceded  the  right  of 
either,  the  warning  was  either  null  and  void  as  against  the  United 
States  or  had  only  the  effect  which  the  United  States  cared  to  give  it, 
derogating,  as  it  did,  from  the  freedom  of  the  seas. 

As  has  been  frequently  mentioned,  it  would  have  made  no  differ- 
ence to  a  surface  cruiser  if  merchant  vessels  had  been  armed  and 
if  they  had  attempted  to  ram  the  cruiser.  In  the  first  case,  they 
would  have  invited  destruction ;  in  the  second  case,  they  would  have 
run  to  destruction.  As  the  Germans  were  unwilling  to  renounce  the 
use  of  the  submarine,  which  would  have  great  difficulty  in  complying 
with  the  formalities  of  visit  and  search  and  which  would  probably 
have  been  unable  to  do  so  in  the  case  of  armed  merchantmen,  as  the 
submarine  could  be  rammed  by  a  merchantman  or  destroyed  by  a 
single  well-directed  shot,  it  was  hoped,  nevertheless,  that  it  might  be 
possible  to  reach  a  compromise  by  the  terms  of  which  the  Imperial 
German  Government  would  conduct  submarine  warfare  according  to 
the  requirements  of  international  law  in  consideration  of  certain  con- 
cessions on  the  part  of  the  Allied  Powers.  Therefore,  on  January  18, 
1916,  Secretary  Lansing  sent  an  informal  and  confidential  letter  to 
the  diplomatic  agents  of  the  Allied  Powers  in  Washington,  suggesting 
a  possible  basis  for  an  agreement.  Secretary  Lansing  stated  frankly 
that  he  regarded  "the  present  method  of  destroying  merchant  ves- 
sels without  removing  the  persons  on  board  to  places  of  safety"  as 
contrary  to  the  principles  of  humanity  which  should  control  the 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    259 

actions  of  belligerents,  and  at  the  same  time  he  denied  with  equal 
frankness  that  "a  belligerent  should  be  deprived  of  the  proper  use 
of  submarines  in  the  interruption  of  enemy  commerce,  since  those 
instruments  of  war  have  proven  their  effectiveness  in  this  particular 
branch  of  warfare  on  the  high  seas."^  His  comments  were,  as  he 
said,  predicated  on  the  following  propositions: 

1.  A  noncombatant  has  a  right  to  traverse  the  high  seas  in 
a  merchant  vessel  entitled  to  fly  a  belligerent  flag  and  to  rely 
upon  the  observance  of  the  rules  of  international  law  and  prin- 
ciples of  humanity  if  the  vessel  is  approached  by  a  naval  vessel 
of  another  belligerent. 

2.  A  merchant  vessel  of  enemy  nationality  should  not  be 
attacked  without  being  ordered  to  stop. 

3.  An  enemy  merchant  vessel,  when  ordered  to  do  so  by  a 
belligerent  submarine,  should  immediately  stop. 

4.  Such  vessel  should  not  be  attacked  after  being  ordered  to 
stop  unless  it  attempts  to  flee  or  to  resist,  and  in  case  it  ceases 
to  flee  or  resist,  the  attack  should  discontinue. 

5.  In  the  event  that  it  is  impossible  to  place  a  prize  crew 
on  board  of  an  enemy  merchant  vessel  or  convoy  it  into  port, 
the  vessel  may  be  sunk,  provided  the  crew  and  passengers  have 
been  removed  to  a  place  of  safety.^ 

It  was  evident  that  the  crux  of  the  matter  was  that  of  armament 
on  the  one  hand,  and  visit  and  search  on  the  other.  It  was  likewise 
evident  that  either  the  Allied  Governments  would  have  to  give  up 
what  they  considered  the  undoubted  right  of  protecting  themselves 
from  attack  of  the  enemy,  or  that  Germany  would  have  to  renounce 
the  use  of  the  submarine.  Secretary  Lansing  proposed  that  the 
Allies  should,  in  the  interest  of  saving  human  life,  renounce  a  doubt- 
ful legal  right  which  may  be  denied  on  account  of  new  conditions, 
meaning  by  that  the  right  of  carrying  armament.  Secretary 
Lansing  did  not,  of  course,  mean  that  in  his  opinion  the  right  was 
doubtful,  because  as  Counselor  and  as  Secretary  of  State  he  had 
stood  for  the  right  to  arm  merchantmen  and  for  their  character  as 
merchantmen  when  so  armed,  and  he  had  also  stood  for  the  duty  of 
visit  and  search,  admitting  the  right  of  a  merchant  vessel  to  resist 
visit  and  search  by  the  use  of  force  or  to  elude  it  by  flight.  He 
meant  that,  because  of  Germany's  denial  of  the  right,  it  might  be 
considered  doubtful  rather  than  that  it  was  doubtful  in  itself.  In 
supporting  his  compromise  Secretary  Lansing  felt  justified  in  saying : 

'  OflScial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  310. 
2  Ibid.,  p.    311. 


260        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

It  would,  therefore,  appear  to  be  a  reasonable  and  recipro- 
cally just  arrangement  if  it  could  be  agreed  by  the  opposing 
belligerents  that  submarines  should  be  caused  to  adhere  strictly 
to  the  rules  of  international  law  in  the  matter  of  stopping  and 
searching  merchant  vessels,  determining  their  belligerent  nation- 
ality, and  removing  the  crews  and  passengers  to  places  of  safety 
before  sinking  the  vessels  as  prizes  of  war,  and  that  merchant 
vessels  of  belligerent  nationality  should  be  prohibited  and  pre- 
vented from  carrying  any  armament  whatsoever.^ 

By  way  of  reenforcing  the  argument  which  he  had  made,  he  con- 
cluded : 

I  should  add  that  my  Government  is  impressed  with  the 
reasonableness  of  the  argument  that  a  merchant  vessel  carrying 
an  armament  of  any  sort,  in  view  of  the  character  of  submarine 
warfare  and  the  defensive  weakness  of  undersea  craft,  should 
be  held  to  be  an  auxiliary  cruiser  and  so  treated  by  a  neutral 
as  well  as  by  a  belligerent  Government,  and  is  seriously  con- 
sidering instructing  its  officials  accordingly.- 

Seeretary  Lansing's  proposal,  conceived  not  in  the  interest  of  any 
belligerent  but  in  the  interest  of  human  life,  did  not  meet  with  the 
approval  of  the  Allied  Powers,  at  whose  expense,  apparently,  the 
agreement  could  only  be  realized.  Before,  however,  the  reply  of  the 
Allied  Powers  (which  was  contained  in  an  informal  letter  from 
the  British  Ambassador  to  Secretary  Lansing,  dated  March  23,  1916) 
was  received,  Germany  and  Austria-Hungary  simultaneously  an- 
nounced that  orders  had  been  given  to  treat  "all  merchant  vessels 
armed  with  cannon  as  vessels  of  war. ' '  In  the  German  memorandum 
of  February  10,  1916,  it  is  stated  that: 

a  merchantman  assumes  a  warlike  character  by  armament  with 
guns,  regardless  of  whether  the  guns  are  intended  to  serve  for 
defense  or  attack.  It  considers  any  warlike  activity  of  an  enemy 
merchantman  contrary  to  international  law,  although  it  accords 
consideration  to  the  opposite  view  by  treating  the  crew  of  such 
a  vessel  not  as  pirates  but  as  belligerents.' 

The  memorandum  of  the  Allied  Powers  was  clear  and  firm  on  the 
right  to  arm  merchant  vessels,  saying:  "From  a  strictly  legal  stand- 
point it  must  be  admitted  that  the  arming  of  merchant  vessels  for 

•  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.  312. 

2  Ibid.,  pp.  312-313.  »  Ibid.,  p.  316. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      261 

defense  is  their  acknowledged  right. ' '  ^  The  memorandum  then  pro- 
ceeded to  state  that  a  belligerent  should  not  be  asked  to  forego  the 
lawful  means  for  protection  from  the  unlawful  attack  of  the  enemy 
without  an  assurance  that  the  enemy  would  desist  from  its  unlawful 
attacks  in  consideration  of  the  renunciation  of  a  lawful  belligerent 
right,  and  the  British  Ambassador  stated  in  the  memorandum,  con- 
cluding this  portion  of  the  subject,  that: 

Great  Britain  is  unable  to  agree  that  upon  a  non-guaranteed 
German  promise,  human  life  may  be  surrendered  defenseless 
to  the  mercy  of  an  enemy  who,  in  circumstances  of  this  kind 
as  in  many  others,  has  shown  himself  to  be  both  faithless  and 
lawless.^ 

In  regard  to  the  proposal  to  consider  armed  merchantmen  as  auxiliary 
cruisers,  the  memorandum  pointed  out  that:  '* Finally,  if  armed 
merchant  vessels  were  to  be  treated  as  auxiliary  cruisers  they  would 
possess  the  right  of  making  prizes,  and  this  would  mean  the  revival 
of  privateering. ' '  ^ 

This  matter  has  been  dwelt  upon  somewhat  at  length  in  order 
to  show  the  earnest  and  persistent  desire  of  the  United  States,  even 
at  the  sacrifice  of  consistency,  to  reach  an  agreement  with  the  Powers 
by  virtue  of  which  the  loss  of  human  life  might  be  avoided  in  sub- 
marine warfare,  and  in  order  that  that  warfare  should  be  made  to 
comply  with  the  requirements  of  visit  and  search  in  the  matter  of 
armed  merchantmen  as  well  as  in  the  matter  of  unarmed  ships.  The 
United  States  failed  in  its  attempt  to  reach  a  compromise,  and  sub- 
marine warfare  continued  as  before. 

The  statement  of  the  Imperial  German  Government,  dated  Febru- 
ary 10,  1916,  that  it  would  thereafter  treat  armed  vessels  as  auxiliary 
cruisers  and  that  it  would  sink  them,  their  passengers  and  crew  on 
sight,  may  have  been  given  to  the  public  to  force  the  Allied  Govern- 
ments to  reject  Secretary  Lansing's  proposal  of  January  18,  1916, 
which  would  have  placed  a  limitation  or  restraint  upon  the  activity 
of  the  submarine  by  forcing  it  to  care  for  its  victims,  which,  it  would 
seem,  would  have  rendered  impossible  what  the  German  government 
considered  its  legitimate  operations.  But  it  was  not  a  new  decision 
of  the  German  Government,  as  the  ruling  had  been  made  in  the  early 
days  of  the  war  (to  be  accurate,  on  October  13,  1914),  and  com- 

*  OflScial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  pp.  336-337. 

2  Ibid.,  p.  337.  *  Ibid.,  p.  338. 


262        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

munieated   to  the   diplomatic  agents  of  the   Powers   accredited  to 
Berlin. 

The  material  portion  of  the  memorandum  of  October  13,  1914,  in 
which  this  ruling  is  contained,  is  as  follows: 

The  equipment  of  British  merchant  vessels  with  artillery  is 
for  the  purpose  of  making  armed  resistance  against  German 
cruisers.  Resistance  of  this  sort  is  contrary  to  international  law, 
because  in  a  military  sense  a  merchant  vessel  is  not  permitted 
to  defend  itself  against  a  war  vessel,  an  act  of  resistance  giving 
the  warship  the  right  to  send  the  merchant  ship  to  the  bottom 
with  crew  and  passengers.  It  is  a  question  whether  or  not  ships 
thus  armed  would  be  admitted  into  ports  of  a  neutral  country 
at  all.  Such  ships,  in  any  event,  should  not  receive  any  better 
treatment  in  neutral  ports  than  a  regular  warship,  and  should 
be  subject  at  least  to  the  rules  issued  by  neutral  nations  restrict- 
ing the  stay  of  a  warship.  If  the  Government  of  the  United 
States  considers  that  it  fulfils  its  duty  as  a  neutral  nation  by 
confining  the  admission  of  armed  merchant  ships  to  such  ships 
as  are  equipped  for  defensive  purposes  only,  it  is  pointed  out 
that,  so  far  as  determining  the  warlike  character  of  a  ship  is  con- 
cerned, the  distinction  between  the  defensive  and  offensive  is 
irrelevant.  The  destination  of  a  ship  for  use  of  any  kind  in 
war  is  conclusive,  and  restrictions  as  to  the  extent  of  armament 
afford  no  guarantee  that  ships  armed  for  defensive  purposes  only 
will  not  be  used  for  offensive  purposes  under  certain  circum- 
stances.^ 

As  the  result  of  negotiations  throughout  almost  the  entire  period 
of  its  neutrality,  the  United  States  obtained  now  and  then  a  recog- 
nition of  the  duty  of  a  belligerent  man-of-war  to  visit  and  seareli 
merchantmen.  But  this  recognition  was  only  in  part  and  does  not 
seem  to  have  been  a  full  compliance  with  the  American  request.  In 
fairness  to  Germany,  it  should  be  said  that  it  was  in  the  nature  of  a 
concession,  not  a  confession  of  a  duty  owing  to  the  changed  condi- 
tions of  maritime  warfare.  As  far  as  can  be  learned  from  the  pub- 
lished documents,  the  nature  and  the  extent  of  this  recognition,  and 
the  right  and  the  duty  of  its  submarines  to  visit  and  to  search  mer- 
chantmen are  stated  by  the  Imperial  German  Government  in  the 
following  passage  from  its  note  of  May  4,  1916: 

The  German  submarine  forces  have  had,  in  fact,  orders  to 
conduct  submarine  warfare  in  accordance  with  the  general  prin- 
ciples of  visit  and  search  and  destruction  of  merchant  vessels 

^  OflBcial  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  321. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      263 

as  recognized  by  international  law,  the  sole  exception  being  the 
conduct  of  warfare  against  the  enemy  trade  carried  on  enemy 
freight  ships  that  are  encountered  in  the  war  zone  surrounding 
Great  Britain ;  with  regard  to  these  no  assurances  have  ever  been 
given  to  the  Government  of  the  United  States;  no  such  assur- 
ance was  contained  in  the  declaration  of  February  8,   1916.^ 

After  expressing  the  hope  that  the  diplomatic  relations  between  the 
United  States  and  the  Imperial  German  Government  would  not  be 
severed,  as  was  more  than  intimated  in  Secretary  Lansing's  note  in 
the  Sussex  case,  dated  April  18,  1916,  to  which  the  German  note 
under  consideration  was  a  reply,  the  Imperial  authorities,  for  the 
reasons  stated,  made  what  they  were  pleased  to  call  a  special  eon- 
cession  for  the  balance  of  the  war.     Thus: 

The  German  Government,  moreover,  is  prepared  to  do  its 
utmost  to  confine  the  operations  of  war  for  the  rest  of  its  dura- 
tion to  the  fighting  forces  of  the  belligerents,  thereby  also  insur- 
ing the  freedom  of  the  seas,  as  principle  upon  which  the  German 
Government  believes,  now  as  before,  to  be  in  agreement  with  the 
Government  of  the  United  States. 

The  German  Government,  guided  by  this  idea,  notifies  the 
Government  of  the  United  States  that  the  German  naval  forces 
have  received  the  following  orders:  In  accordance  with  the  gen- 
eral principles  of  visit  and  search  and  destruction  of  merchant 
vessels  recognized  by  international  law,  such  vessels,  both  within 
and  without  the  area  declared  as  naval  war  zone,  shall  not  be 
sunk  without  warning  and  without  saving  human  lives,  unless 
these  ships  attempt  to  escape  or  offer  resistance.^ 

It  is  to  be  observed  that,  by  the  express  terms  of  this  concession, 
enemy  freight  ships  encountered  in  the  war  zone  surrounding  Great 
Britain  were  not  to  have  the  benefit  of  the  general  principles  of  visit 
and  search  and  destruction  of  merchant  vessels  as  recognized  by 
international  law,  that  other  merchant  ships  were  to  be  treated  in 
accordance  with  the  general  principles  of  visit  and  search  and  destruc- 
tion of  merchant  vessels  recognized  by  international  law;  that,  how- 
ever, the  benefit  of  international  law  was  to  be  denied  them 
should  they  "attempt  to  escape  or  offer  resistance";  and  in  a  pas- 
sage previously  quoted  this  concession — regarded  only  as  such  by 
the  German  Government — was  not  to  be  enjoyed  by  neutrals  "if  her 
enemy  is  permitted  to  continue  to  apply  at  will  methods  of  warfare 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  196. 
2  Ibid.,  p.  198. 


264        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

violating  the  rules  of  international  law";  and  that,  finally,  armed 
vessels  (meaning  by  that  term  apparently  any  vessel  armed  with  a 
gun  sufficient  to  stop  the  submarine)  were  to  be  treated  as  auxiliary 
cruisers  and  sent  to  the  bottom  with  crew  and  passengers. 

This  may  seem  but  a  small  result  of  constant  and  persistent  nego- 
tiation extending  over  a  period  of  well-nigh  two  years,  for  it  merely 
amounted  to  the  statement  that  Germany  would  conduct  its  mari- 
time operations  hereafter  in  accordance  with  the  generally  recog- 
nized principles  of  international  law,  which  Germany  should  have 
done  from  the  beginning  of  the  war.  Yet  it  was  very  important  to 
procure  a  pledge  of  this  kind,  because  it  was  a  recognition  on  the 
part  of  Germany  that  its  actions  had  been  contrary  to  international 
law,  as  this  relieved  the  United  States  of  the  burden  of  proof  in 
the  future.  The  reservation  of  the  right  to  continue  its  conduct  con- 
trary to  the  generally  recognized  principles  of  international  law 
during  the  remainder  of  the  war  if  the  enemy  did  not  mend  its 
ways  was  a  claim  on  the  part  of  the  German  Government  to  do 
wrong,  at  the  expense  of  the  neutral,  if  its  enemy  did  not  do  right. 
This  concession,  therefore,  judged  by  the  past,  was  ominous  for  the 
future,  as  was  also  the  pledge  to  be  bound  by  the  general  principles 
"recognized  by  international  law,"  because  Germany  reserved  to 
itself  the  interpretation  of  the  general  principles  recognized  by  inter- 
national law,  and  in  each  statement  visit  and  search  are  coupled  with 
destruction,  thus  placing,  apparently,  visit,  search,  and  destruction 
upon  an  equality. 


CHAPTER   XIV 

THE    ACCEPTED    RULES    OF    MARITIME    WARFARE 

Section  1.   Views  of  German  Pubucists 

The  contentions  of  the  Imperial  German  Government  and  of 
the  United  States  in  regard  to  the  conduct  of  Germany's  war- 
fare upon  the  high  seas  have  been  laid  before  the  reader  in  the 
form  in  which  they  are  to  be  found  in  the  official  correspond- 
ence between  the  two  Governments,  without  reference,  or  with  very 
slight  or  incidental  reference,  to  the  views  of  publicists  whose  writ- 
ings are,  according  to  the  decisions  of  the  Supreme  Court  of  the 
United  States,  to  be  taken  as  evidence  of  the  law  of  Nations.  It  is 
proposed  in  this  place,  therefore,  to  consider  the  contentions  of  the 
two  Governments  in  the  light  of  the  law  of  Nations  as  expounded 
by  publicists,  and  for  this  purpose,  in  order  that  the  German  con- 
ception of  international  law  may  be  adequately  represented,  only 
the  writings  of  German  publicists  of  repute  will  be  considered.  For 
if  the  conduct  of  the  Imperial  German  Government  is  in  accord- 
ance with  the  views  of  its  accredited  publicists  published  before  the 
war,  and  indeed  before  this  war  could  be  supposed  to  have  been  in 
contemplation  of  the  Government  and,  in  any  event,  beyond  the 
knowledge  of  the  publicists,  it  must  be  conceded  that,  although  the 
views  of  our  Government  may  differ  from  those  expressed  and  acted 
upon  by  Germany,  there  is  authority  of  no  mean  order  for  our 
Imperial  antagonist,  and  that  its  actions,  however  contrary  to  what 
we  may  be  pleased  to  consider  the  dictates  of  humanity,  cannot  be  re- 
garded as  in  violation  of  international  law  as  the  German  Govern- 
ment conceives  it  to  be. 

First,  as  to  visit  and  search  and  the  formalities  required  by  the 
practice  of  Nations  in  the  exercise  of  this  belligerent  right.  The 
nature  and  extent  of  the  right  and  the  reason  for  its  existence  are 
admirably  and  fully  stated  by  the  distinguished  Prussian  publicist, 
August  Wilhelm  Heffter,  a  man  of  large  learning,  a  lawyer  by  pro- 
fession, a  judge  by  position,  and  for  many  years  professor  of  inter- 
national law  in  the  University  of  Berlin. 

265 


266        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

His  treatise  entitled  Da^  Europdisclie  Tolkerrccht  der  Gegenwart, 
first  published  in  1844,  has  frequently  been  reprinted  and,  enriched 
with  Geffcken's  notes,  it  occupies  the  position  in  German  literature 
which  Dana's  edition  of  Wheaton's  Elements  of  International  Law 
holds  in  the  English-speaking  world.  Indeed,  a  no  less  competent 
authority  than  the  broad-minded  and  liberal  publicist  Robert  von 
Mohl  considered  it  from  the  legal  standpoint  by  far  the  best  in 
any  language.' 


On  the  subject-matter  in  hand  Heffter  says: 


The  means  generally  resorted  to  by  the  belligerents  for  the 
purpose  of  maintaining  neutral  commerce  within  the  necessary  or 
conventional  limits,  is  caUed  the  right  of  visit.  This  right  en- 
titles the  belligerents,  either  by  national  vessels,  or  by  com- 
missioned armed  vessels,  to  stop  other  vessels  which  they  en-^ 
counter  on  the  seas,  to  ascertain  their  nationality,  to  establish 
the  nature  of  their  cargo  and  their  destination.    .    .    . 

The  right  of  search  is  granted  in  order  that  the  belligerent 
may  make  good  his  title  to  certain  rights  with  regard  to  the 
enemy  and  the  neutral  Nations.    .     .     . 

The  belligerent  may  exercise  the  right  of  visit: 

1.  Within  his  own  territory ; 

2.  Within  the  territory  of  his  adversary,  that  is  to  say, 
within  the  enemy  roadways,  ports,  and  territorial  waters,  even 
including  the  rivers; 

3.  Lastly,  upon  the  high  seas. 

But  the  visit  may  not  be  operated  within  neutral  waters, 
nor  within  those  of  the  friendly  Powers,  without  the  latter 's 
express  or  tacit  consent. 

The  merchantmen  encountered  within  the  above-mentioned 
areas  and  whose  peaceful  destination,  dissociated  from  the  oper- 
ations of  the  war,  is  not  established  by  evident  and  incontro- 
vertible signs,  are  subject  to  the  visit.  The  neutral  warships  are 
not  subject  to  visit,  provided  their  nationality  is  undisputed. 
It  should,  however,  be  observed  that  the  flag  does  not  necessarily 
guarantee  their  nationality.  The  belligerents  may,  on  the  con- 
trary, stop  upon  the  high  seas  any  kind  of  transports  whose 
harmlessness  is  not  sufficiently  established,  both  with  regard  to 
their  cargo  and  their  owner,  and  with  regard  to  the  port  whence 
they  came  and  to  which  they  are  destined. 

The  visit  has  for  its  special  purpose: 

1.  To  ascertain  the  ownership  of  the  vessel  and  of  the  cargo 
and  to  establish  if  the  one  or  the  other  may  not  belong  to  the 
enemy ; 

'  Holtzendorff'B  Handbuch  des  Volkerrechts    (Berlin,  1885-1889,  4  vols.),  vol. 
1,  p.  486. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      267 

2.  To  ascertain  if  enemy  persons  may  not  be  on  board  of  the 
vessel  visited ; 

3.  To  establish  that  the  vessel  does  not  carry  articles  of 
contraband  or  of  prohibited  assistance  to  the  enemy; 

4.  To  prevent  the  vessel  from  communicating  with  blockaded 
localities. 

In  consequence,  the  visit  must  establish: 

1.  The  nationality  of  the  vessel; 

2.  The  quality,  the  origin,  and  the  destination  of  the  cargo; 

3.  The  nationality  of  the  crew.^ 

After  thus  stating  the  general  nature  and  extent  of  the  right, 
the  place  where  it  may  be  exercised,  its  specific  purposes  and  the 
facts  to  be  established  by  visit  and  search,  Heffter  next  indicates  the 
agents  of  the  belligerents  by  which  the  right  may  properly  be  exer- 
cised.   Thus,  on  this  point,  he  says: 

The  right  of  visit  of  neutral  vessels  is  exclusively  reserved 
to  the  commanders  of  naval  and  military  forces,  especially  to  the 
war  vessels  and  to  all  others  provided  with  commissions  issued 
by  the  belligerent  sovereign,  including  privateers,  provided  piracy 
has  not  been  abolished.- 

But  experience  has  shown,  to  speak  only  of  times  past,  that  bel- 
ligerents are  a  law  unto  themselves,  and  that  unless  a  right  granted 
them  be  regulated  and  carefully  safeguarded,  it  is  likely  to  be  abused. 
Because  of  this  the  formalities  to  be  observed  in  the  execution  of 
this  right  are  no  less  important  than  the  right  itself,  and  they  are 
as  clear  and  definite,  well  understood  and  recognized  as  is  the  right. 
Therefore,  in  the  next  passage  to  be  quoted  Heffter  mentions  the 
formalities  to  be  followed  in  boarding  the  vessel  to  be  visited  and 
searched,  if  need  be,  the  documents  to  be  examined  proving  the  char- 
acter of  the  vessel,  its  cargo,  and  the  venture  in  which  it  is  engaged. 
Thus : 

The  exercise  of  the  right  of  visit  has  been  regulated,  especially 
by  the  Treaty  of  the  Pyrenees,"  whose  dispositions  upon  this 

*  Heffter,  Das  Europaische  Volkerrecht  der  Gegenwart  (Berlin,  1888),  8th  ed., 
pp.  372-374. 

'  Ibid.,  p.  374. 

» The  Treaty  of  the  Pyrenees,  concluded  between  France  and  Spain  in  1659, 
and  which  ia  properly  called  by  Heffter  the  leading  treaty  on  the  subject, 
affirms  and  incorporates  the  law  of  Nations  upon  this  subject,  in  its  seven* 
teenth  article,  which  reads  as  follows: 

Que  s'ils  estoient  entrez  dans  les  Rades,  ou  estoient  rencontrez  en 
pleine  mer,  par  quelques  Navires  dudit  Seigneur  Roi  Catholique,  ou 
d'Armateurs  particuliers  ses  Sujets,  lesdits  Navires  d'Espagne,  pour  eviter 


268        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

matter  have  become  the  European  maritime  law.  These  disposi- 
tions deal  with :  the  warning  to  stop ;  the  distance  at  which  the 
cruiser  is  to  remain ;  the  sending  of  a  limited  number  of  men  on 
board  neutral  vessels;  the  examination  of  the  ship's  papers. 
The  warning  is  given  by  cannon  shot  fired  from  the  cruiser  to 
inform  the  vessel  of  the  latter 's  intention  to  visit  it.  The  vessel 
must  obey  the  warning  to  stop  and  await  the  visit.  If  it  does  not 
comply,  it  exposes  itself  to  being  constrained  by  the  use  of  force. 
The  cruiser  may  send  a  boat  to  the  vessel  visited,  and  only  two 
or  three  men  may  go  on  board. 

The  last  formality  of  the  visit,  and  the  most  important,  is 
the  examination  of  the  ship's  papers.  The  papers  which  may  be 
examined  and  serve  as  proof,  are  as  follows: 

The  passport  and  any  other  certificates  establishing  the  origin 
of  the  vessel  and  of  the  cargo; 

The  bill  of  lading  and  the  charter-party; 

The  register  of  the  crew ; 

Lastly,  the  ship's  log-book.^ 

Further  details  are  added  from  a  work  of  very  great  authority 
entitled  Das  Moderne  Volkerreclit  der  Civilisirten  Staaten,^  which  is 
universally  considered  to  be  the  first  adequate  statement  of  interna- 
tional law  in  the  form  of  a  code.  Its  author,  Johann  Caspar  Blunt- 
schli,  Swiss  by  birth,  German  by  naturalization,  and  professor  of 
international  law  in  the  University  of  Heidelberg,  upheld  the  tradi- 
tions of  this  seat  of  learning,  if  he  could  not  be  said  to  have  enhanced 
its  prestige, — for  it  must  not  be  forgotten  that  the  first  chair  of  inter- 
national law  in  the  world  was  established  in  Heidelberg  in  1661  and 
that  its  first  professor  was  no  less  a  person  than  Samuel  von  Pufen- 
dorf .    Thus,  Bluntschli  says : 

tout  desordre,  n'approcheront  pas  de  plus  pres  les  Francois,  que  de  la 
portee  du  canon,  &  pourront  envoyer  leur  petite  Barque  ou  Chaloupe  au 
bord  des  Navires  ou  Barques  Frangoises,  &  faire  entrer  dedans  deux  ou 
trois  hommes  seulement  a  qui  seront  montrez  les  Passeports,  par  le  Maistre 
ou  Patron  du  Navire  Frangois,  en  la  maniere  cy-dessus  specifi^e,  selon  le 
Formulaire  qui  fera  infere  a  la  fin  de  ce  Traite;  par  lequel  il  puisse 
apparoitre  non  seulement  de  sa  charge,  mais  aussi  du  lieu  de  sa  demeure 
&  residence,  &  du  nom  tant  du  Maistre  &  Patron,  que  du  Navire  mesme; 
afin  que  par  ces  deux  moyens  on  puisse  connoitre  s'ils  portent  des  Mar- 
chandises  de  Contre-bande,  &  qu'il  apparoisse  suffisamment,  tant  de  la 
qualite  du  dit  Navire,  que  de  son  Maistre  &  Patron:  ausquels  Passeports 
&  Lettres  de  Mer,  se  devra  donner  entiere  foi  &  creance.  Et  afin  que  Ton 
connoisse  mieux  leur  validite,  &  qu'elles  ne  puissent  en  aucune  maniere 
estre  falsifiees  &  contrefaites,  seront  donn^es  certaines  marques  &  con- 
treseings  de  chaque  coste  des  deux  Seigneurs  Rois.  {Corps  universal  diplo- 
matique ail  droit  des  gens,  .  .  .  par  J.  Dumont  [La  Haye,  1728,  8  vols.], 
vol.  6,  part  2,  p.  264.) 

^  Heffter,  Das  Europaische  Volkerrecht  der  Gegemcart,  Sth  ed.,  pp.  374-375. 
'  Das   Moderne    Volkerrecht   der   Civilisirten   Staaten,   von   J.    C.   Bluntschli 
(Nordlingen,    1878). 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      269 

The  visit  consists  solely  in  the  examination  of  the  ship's 
papers. 

In  case  of  serious  suspicion,  search  of  the  vessel  may  be  made, 
and  the  latter  may  be  seized  only  in  case  it  transports  war  con- 
traband. 

The  State  whose  vessels  are  charged  with  exercising  the  right 
of  visit  is  responsible  toward  the  neutral  State  for  any  acts  of 
violence  or  of  harshness  committed  in  the  course  of  the  visit  or 
of  the  search.^ 

The  reasons  for  the  rule  and  for  the  restrictions  upon  the  exercise 
of  the  right  are  thus  stated  by  Bluntschli  in  connection  with  the 
peissage  last  quoted: 

This  rule  is  the  necessary  corrective  measure  of  the  right  of 
visit.  The  belligerent  State  which  stops  a  neutral  vessel  on  the 
high  seas,  engages  always  in  an  act  of  violation  of  the  freedom 
and  independence  of  the  neutral  territory  of  which  such  vessel 
is  a  floating  part.  The  neutral  State  tolerates  such  violation  be- 
cause it  deems  it  inevitable  in  time  of  war ;  but  it  does  not  permit 
such  violation  beyond  certain  limits.  The  crew  proceeding  to 
the  visit  must  bear  in  mind  that  they  are  on  foreign,  neutral 
territory,  and  control  the  conduct  of  citizens  of  a  friendly  State 
over  whom  their  Government  has  no  right  of  sovereignty.  The 
war  vessel  proceeding  to  the  search  must  therefore  take  into 
account  the  relations  of  friendship  which  unite  the  States  living 
at  peace,  and  must  refrain  from  any  act  of  authority  or  of  vio- 
lence, so  long  as  no  evident  guilt  has  been  established.' 

In  order  to  round  out  this  phase  of  the  subject  a  further  quota- 
tion will  be  made  from  Bluntschli 's  distinguished  successor,  August  von 
Bulmerincq,  in  the  chair  of  international  law  in  the  University  of 
Heidelberg.  Like  Bluntschli,  he  was  a  foreigner  by  birth,  being  of 
Russian  nationality,  but  by  naturalization  a  German  subject.  He  was 
a  specialist  in  maritime  law,  indeed  the  recognized  authority  on  prize 
law  and  procedure,  and  it  will  always  redound  to  his  credit  that, 
through  his  initiative,  a  movement  was  started  in  behalf  of  an  inter- 
national prize  court,  culminating  in  the  Second  Hague  Peace  Con- 
ference, which  adopted  a  convention  for  the  creation  of  this  much 
needed  international  tribunal  upon  the  proposals  of  the  German  and 
British  delegations.  Bulmerincq  thus  separates  into  its  constituent 
parts  the  right  in  question: 

The  right  to  stop,  visit,  and  search  indicates  the  authority  of 
warships  of  belligerent  States  to  stop,  to  visit,  and  to  search 

^  Bluntschli,  Das  Moderne  Yolkerrecht  der  Civilisirten  Staaten,  pp.  461-462. 


270        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

foreign  privately  owned  ships.  The  three  rights  are  included 
under  the  term  "right  of  search."  But  we  must  distinguish 
between  the  right  of  visit  and  the  right  of  search;  they  corre- 
spond to  the  French  droit  de  visite  and  recherche  and  to  the 
English  right  of  visit  and  search.  The  right  of  visit  indicates, 
therefore,  the  international  authority  of  authorized  ships  to  visit, 
private  ships,  while  the  right  of  search  confers  the  right  to 
search  them.  In  treaties  and  in  the  instructions  issued  to  the 
commanders  of  warships  for  their  conduct  in  war  time  towards 
merchantmen,  reference  is  made  only  to  the  right  of  visit;  accord- 
ing to  prize  regulations,  the  right  of  search  arises  only  after  the 
visit  has  been  effected.' 

After  having  spoken  of  the  formalities  to  be  observed  in  effecting 
the  visit,  Bulmerincq  passes  to  a  consideration  of  the  conditions  under 
which  search  may  be  made  and  seizure  effected.  On  the  question  of 
search  he  says: 

If  the  ship's  papers  are  not  in  proper  order  or  if  the  visit 
which  has  taken  place  has  given  rise  to  a  well-founded  suspicion, 
then  the  officer  who  performed  the  visit  is  authorized  to  proceed 
with  the  search  of  the  ship.  The  ship  may  not  resist  search ; 
but  should  it  nevertheless  resist,  then  the  search  may  be  carried 
through  by  force. 

There  exists,  however,  a  well-founded  suspicion: 

1)  When  the  ship  stopped  has  not  obeyed  the  order  of  the 
warship  to  stop ; 

2)  When  the  ship  stopped  has  resisted  the  visit  of  the  holds 
with  regard  to  which  suspicion  has  arisen  that  they  may  hide 
ship 's  papers  or  contraband ; 

3)  When  duplicate,  false,  fraudulent,  secret,  insufficient,  or 
no  papers  whatever  are  found  on  board ; 

4)  When  the  papers  have  been  east  overboard  or  been  de- 
stroyed in  any  other  manner,  especially  when  such  acts  have 
been  resorted  to  when  the  ship  became  aware  of  the  approach 
of  the  warship ; 

5)  When  the  ship  stopped  is  sailing  under  a  false  flag. 
The  persons  to  whom  are  committed  the  right  of  search  are 

not  authorized  to  open  or  break  open  any  holds  which  might 
contain  part  of  the  cargo,  nor  are  they  authorized  arbitrarily  to 
search  parts  of  the  cargo  which  lie  about  loose  on  the  ship. 
Rather,  in  the  suspicious  cases  alluded  to,  the  searching  officer 
must  cause  the  holds  to  be  opened  by  the  captain  and  have  the 
loose  part  of  the  cargo  examined  with  the  cooperation  of  the 
captain.^ 

Second,  as  to  the  sinking  of  the  prize  and  the  saving  of  crew  and 

^  Das  Volkerrecht  oder  das  Internationale  Recht  ( 1887 ) ,  von  August  voa 
Bulmerincq,  p.  372. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      271 

passengers.  On  this  point,  Heffter,  whose  authority  has  already  been 
invoked  in  the  matter  of  visit  and  search,  has  little  to  say,  indicating 
that  in  his  opinion  it  was  a  custom,  if  a  custom  at  all,  more  honored 
in  the  breach  than  in  the  observance.  He  compresses  what  he  has  to 
say  on  the  subject  within  the  limits  of  a  sentence:  "The  destruction 
of  the  prize  may  not  be  effected  except  in  cases  of  extreme 
necessity. ' ' ' 

It  is  to  be  observed  that  he  does  not  differentiate  between  enemy 
and  neutral  prizes,  and  rightly  so,  because,  when  the  first  edition  of 
his  treatise  appeared,  the  destruction  of  neutral  prizes  had  not  been 
considered.  Indeed,  the  subject  first  received  attention  in  the  ses- 
sions of  the  Institute  of  International  Law  and,  while  that  learned 
body  permitted  the  destruction  of  enemy  prizes,  it  rejected  the 
destruction  of  neutral  prizes  after  much  consideration  at  the  session 
of  Heidelberg  in  1887.  In  its  International  Regulations  Concerning 
Prizes,  adopted  in  1882,  the  word  enemy  was  omitted  by  mistake 
before  vessel  in  Article  50  of  the  definitive  text  {Annuaire,  vol.  6,  p. 
221),  but  the  Institute  at  its  Heidelberg  session  corrected  the  text  by 
inserting  the  word  "enemy"  before  vessel  {Annicaire,  vol.  9,  pp.  200, 
202),  thus  limiting  destruction  to  enemy  vessels.  In  the  eighth  edi- 
tion of  Heffter 's  masterly  treatise,  which  appeared  in  1888,  its  learned 
editor,  Geffcken,  like  Heffter  a  member  of  the  Institute  of  Inter- 
national Law,  added  the  following  note  to  Heffter 's  text,  drawing 
the  distinction  between  the  destruction  of  enemy  and  neutral  prizes, 
which  had  been  called  to  the  attention  of  publicists  by  the  discus- 
sions of  the  Institute : 

Destruction  of  a  neutral  ship  is  admissible  only  in  a  case  of 
extreme  necessity,  for  the  reason  that  the  status  of  such  a  ship 
is  different  from  that  of  a  clearly  enemy  ship  whose  condem- 
nation is  certain.  Such  necessity  may  be  assumed  when  the 
ship  is  no  longer  seaworthy,  or  when  the  captor  is  being  pursued 
by  a  superior  force  by  the  enemy. 

The  learned  commentator  evidently  thought  that  human  life  was 
of  more  importance  than  the  ship,  because,  while  he  permitted  the 
inanimate  object  to  be  destroyed,  he  refused  to  sanction  the  death 
of  his  fellow-beings,  saying : 

In  any  case  he  must  bring  the  crew  of  the  ship  in  safety, 
carefully  preserve  its  papers,  and  remains  responsible  to  the 

*  Heffter,  Das  Europaische  Volkerrecht  der  Gegenwart,  p.  301. 


272        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

owner  for  the  destruction,  if  the  prize  court  does  not  confirm 
the  seizure.' 

On  the  destruction  of  prizes  and  the  exceptional  circumstances 
justifying  it,  the  late  Ferdinand  Perels,  the  distinguished  authority 
on  maritime  law  and  for  many  years  adviser  to  the  Imperial  Ger- 
man Admiralty,  has  this  to  say  in  a  treatise  entitled  Das  Interna' 
tionale  Offentliche  SeerecJit  der  Gegenwart,  the  second  edition  of  which 
was  published  in  1903 : 

Destruction  of  the  prize  is  authorized  only  in  the  most  excep- 
tional circumstances.  It  must  be  so,  indeed,  because  of  the 
absolute  necessity  of  having  to  resort  to  a  decision  of  a  prize 
court  to  aseertaian  the  validity  of  the  seizure.  Such  an  act  as, 
in  general,  any  resort  to  force,  can  be  legitimate  only  in  case  the 
prize  cannot  be  taken  to  a  place  of  safety  without  running  serious 
danger,  or  in  case  the  captor  cannot  preserve  the  prize  without 
exposing  his  own  vessel  to  serious  danger.    .     .     . 

Even  if  the  prize  has  been  destroyed,  a  judicial  decision  must 
confirm  the  validity  of  the  capture;  if  the  decision  declares  the 
seizure  illegal  the  Government  of  the  captor  must  then  make  full 
compensation  to  the  party  interested  for  the  loss  sustained,  and 
it  may  not  refer  such  party  to  the  commander  of  the  capturing 
vessel  in  order  to  secure  such  reparation;  the  responsibility  of 
the  officer  is  a  domestic  question  which  in  no  way  concerns  the 
OAvner  of  the  vessel  or  of  the  cargo. 

If  the  prize  is  lost  through  a  maritime  accident,  no  damages 
are  paid  either  for  the  vessel  or  the  cargo,  even  although  the 
capture  is  invalidated  by  a  prize  court.- 

The  destruction  of  neutral  prizes  had  ceased  to  be  academic  from 
the  outbreak  a  year  later  of  the  Russo-Japanese  War,  because  of 
the  fact  that  Russia  claimed  and  exercised  the  right  to  destroy  neu- 
tral prizes,  but  invariably  saved  the  crew  and  passengers.  As  has 
been  pointed  out,  the  subject  was  discussed  at  the  Second  Hague 
Peace  Conference,  but  no  agreement  could  be  forced  through  permit- 
ting or  recognizing  the  destruction  of  a  neutral  prize.  In  the  inter- 
val between  the  adjournment  of  this  Conference  and  the  London  Naval 
Conference,  where  the  destruction  of  a  neutral  prize  was  rejected  in 
principle  but  admitted  in  exceptional  cases  and  under  prescribed  con- 
ditions, Dr.  Emanuel  von  Ullmann,  professor  of  international  law 
in  the  University  of  Munich,  published  the  second  edition  of  his 
treatise  on  international  law,  in  which  he  thus  deals  with  this  question : 

'  Heffter,  Das  Europdische  Volkerrecht  der  Oegenmart,  p.  380,  note  6. 

2  Perels,  Das  Internationale  Offentliche  Seerecht  der  Oegemvart,  pp.  298-299. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      273 

Ships  and  cargoes  which  have  been  seized  must,  by  the  cap- 
turing warship,  be  taken  to  the  nearest  port  of  its  State  or  of  an 
ally  for  the  purpose  of  securing  decision  from  a  prize  court. 
If  for  any  reason  whatever  a  neutral  prize  cannot  be  taken  to 
a  prize  court  for  action,  then  (as  in  the  case  of  enemy  private 
ships)  the  rule  is  that  destruction  of  the  prize  may  not  follow. 
It  is  a  matter  of  controversy  as  to  whether  destruction  of  a 
neutral  prize  is  exceptionally  permitted  before  the  prize  court 
has  rendered  a  decision.^ 

After  stating  that  "English  practice  holds  that  the  neutral  prize 
shall  be  released"  and  calling  attention  to  the  different  practices  of 
other  countries,  the  learned  author  adds  that  "In  such  eases,  how- 
ever, the  crew  and  if  possible  the  cargo,  as  well  as  the  ship's  papers, 
must  be  taken  to  a  place  of  safety."  And  in  another  portion  of  his 
treatise  the  same  author  says,  in  speaking  of  the  destruction  of  war 
vessels  that  "humanitarian  custom  commands  the  rescuing  of  the 
shipwrecked  in  case  of  the  sinking  of  the  ship,    .    .    ." 

In  the  edition  of  his  treatise  on  international  law  published 
in  1913,  just  one  year  before  the  outbreak  of  the  European  War, 
Dr.  Franz  von  Liszt,  professor  of  international  law  in  the  University 
of  Berlin,  admitted  the  right  to  destroy  enemy  merchantmen,  but 
he  hastened  to  add  ' '  in  case  of  destruction  care  must  be  exercised  for 
the  safety  of  the  persons  on  board  and  the  preservation  of  the  ship's 
papers. ' ' 

In  speaking  of  the  destruction  of  neutral  prizes,  he  says: 

In  1907,  the  question  of  the  destruction  of  the  neutral  prize 
was  the  object  of  animated  discussion.  According  to  the  Anglo- 
American  proposition,  such  destruction  was  to  be  unreservedly 
forbidden;  but  no  agreement  was  come  to  in  this  matter.  The 
London  Conference  has  opposed  it  on  principle,  but  permitted 
it  in  case  of  necessity;  namely,  if  in  the  attempt  to  take  the 
captured  ship  to  port,  the  warship  might  expose  itself  to  danger, 
or  jeopardize  the  success  of  the  military  operations  in  which  it 
may  at  the  time  be  engaged,^ 

Professor  von  Liszt,  however,  subordinates  the  destruction  to  the 
saving  of  human  life,  saying: 

Before  destroying  the  neutral  prize  the  persons  on  board 
must  be  put  into  a  place  of  safety  and  the  ship's  papers  and 
any  other  documentary  proof  must  be  put  on  board  the  warship. 

'  Volkerrecht,  von  Emanuel  von  Ullmann  (Tubingen,  1908),  pp.  534-535  (Das 
Offentliche  Recht  der  Oegenwart,  vol.  3 ) . 

'Das  Volkerrecht,  von  Franz  von  Liszt  (Berlin,  1913),  p.  342, 


274        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  statements  of  von  Liszt  are  based  upon  the  provisions  of  the 
Declaration  of  London  regarding  the  destruction  of  neutral  prizes. 
Admitting  that  the  Declaration  was  not  binding  because  not  rati- 
fied, it  nevertheless  fairly  represented  at  the  time  the  views  of 
the  ten  Governments — Germany,  Austria-Hungary,  France,  Great 
Britain,  Italy,  Japan,  Netherlands,  Russia,  Spain,  United  States — 
taking  part  in  the  Conference,  and  a  compromise  of  opposing  views 
in  the  interest  of  all ;  and,  bearing  in  mind  the  fact  mentioned  in  the 
German  diplomatic  correspondence  that  the  document  was  declara- 
tory, not  amendatory,  of  the  law  of  Nations,  although  the  preliminary 
provisions  only  state  that  "the  rules  contained  in  the  following  chap- 
ters correspond  in  substance  with  the  generally  recognized  principles 
of  international  law,"  the  Declaration  of  London  is  worthy  of  care- 
ful consideration  in  the  matter  of  neutral  prizes.  Its  provisions, 
in  so  far  as  they  relate  to  the  matter  in  hand,  are: 

Article  48.  A  neutral  vessel  which  has  been  captured  may 
not  be  destroyed  by  the  captor ;  she  must  be  taken  into  such  port 
as  is  proper  for  the  determination  there  of  all  questions  con- 
cerning the  validity  of  the  prize. 

Article  49.  As  an  exception,  a  neutral  vessel  which  has  been 
captured  by  a  belligerent  warship,  and  which  would  be  liable  to 
condemnation,  may  be  destroyed  if  the  observance  of  Article  48 
would  involve  danger  to  the  safety  of  the  warship  or  to  the 
success  of  the  operations  in  which  she  is  engaged  at  the  time. 

Article  50.  Before  the  vessel  is  destroyed  all  persons  on 
board  must  be  placed  in  safety,  and  all  the  ship's  papers  and 
other  documents  which  the  parties  interested  consider  relevant 
for  the  purpose  of  deciding  on  the  validity  of  the  capture  must 
be  taken  on  board  the  warship. 

Third,  as  to  resistance  of  neutral  and  of  enemy  merchantmen  to 
capture.  On  this  point  only  one  German  authority  need  be  quoted, 
together  with  a  statement  of  the  views  of  the  Institute  of  International 
Law.  The  German  work,  to  which  reference  is  made,  is  entitled 
Das  Seekriegsreclit  (Stuttgart,  1915),  by  Dr.  Hans  Wehberg,  a  young 
but  very  distinguished  and  rising  German  publicist,  then  in  the 
judicial  service  of  his  country  in  Diisseldorf,  now  serving  it  in  the 
field  ''somewhere  in  France." 

On  the  question  of  resistance  of  neutral  and  of  enemy  merchant- 
men to  visit  and  search,  he  says,  and  his  views  are  quoted  on  this 
subject  at  very  great  length: 

It  has  already  been  emphasized  that  resistance  of  neutral 
merchant  ships  against  search  is  inadmissible,  because  the  bellig- 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      275 

erents  are  entitled  to  the  right  of  search.  On  the  other  hand, 
enemy  merchant  ships  not  excepted  from  the  prize  law  may 
resist  capture  by  force.  We  are  here  dealing  with  an  act  of 
hostility,  and  not  with  the  exercise  of  a  repressive  right. 

It  is  true  that  requisitions,  etc.,  may  be  exacted  in  warfare 
on  land  and  that  resistance  thereto  is  not  admissible.  But,  in 
such  case,  conditions  are  essentially  different.  It  is  quite  cer- 
tain that  originally  there  existed  no  "right"  of  requisition,  and 
whenever  requisitions  were  exacted,  they  represented  acts  of 
force  against  which  the  population  had  a  right  to  defend  itself. 
In  modern  times,  however,  the  States  have  recognized  a  "right" 
to  make  requisitions  in  warfare  on  land.  The  necessary  conse- 
quence was  that  private  persons  were  enjoined  not  to  resist  by 
force  when  requisitions  were  made.  The  idea  that  only  organ- 
ized troops  may  resort  to  force  has  been  fully  recognized  with 
regard  to  warfare  on  land.  This  result  was  quite  natural  in 
view  of  the  fact  that  requisitions  were  made  not  in  order  to 
injure  the  enemy,  but  merely  to  provide  for  the  needs  of  the 
army  of  occupation. 

It  is,  however,  erroneous  to  say  that,  because  in  warfare  on 
land  armed  resistance  may  not  be  resorted  to  by  peaceful  per- 
sons, this  must  therefore  equally  apply  to  naval  warfare.  If  this 
were  so,  it  would  be  equally  true  to  say  that  private  property 
being  inviolable  in  warfare  on  land,  the  same  idea  should  apply 
to  naval  warfare;  but  we  have  repeatedly  emphasized  the  inde- 
fensibilfty  of  this  idea.  Such  conclusions  lose  sight  of  the  fact 
that  the  peculiar  nature  of  the  scene  of  maritime  operations 
introduces  a  sharp  distinction  between  land  and  maritime  war- 
fare. It  was  possible  to  recognize  in  warfare  on  land  a  "right" 
to  make  requisitions  because  in  such  case  the  seizure  of  private 
property  was  not  the  primary  purpose  of  the  act,  and  conse- 
quently, the  interests  of  private  persons  could  be  given  proper 
consideration.  The  ancient,  unrestricted  right  to  seize  enemy 
property  on  land,  the  primary  object  of  which  was  to  do  all  pos- 
sible harm  to  the  country,  developed  into  a  real  "right"  because 
bounds  were  thus  set  to  the  former  unlimited  right,  and  this  was 
made  possible  only  by  recognizing  a  limited  "right."  In  mari- 
time warfare,  however,  the  belligerents  aim  to  destroy  maritime 
commerce  as  far  as  possible.  To  grant  to  the  adversary  a  "right 
to  capture  property"  would  be  to  issue  to  him  a  license  without 
at  the  same  time  requiring  from  him  an  equivalent  considera- 
tion. It  is  evident,  therefore,  that  no  conclusions,  applicable  to 
maritime  warfare,  can  be  derived  from  principles  which  have 
been  generally  applied  in  warfare  on  land. 

The  idea  that  "armed  resistance  may  be  offered  only  on  the 
part  of  organized  troops"  is  in  a  general  way  just  as  erroneous 
as  the  assertion  that  war  is  only  a  legal  relation  between  States 
from  which  the  peaceful  population  is  excluded.  It  must  be 
remembered  that  the  States  have  never  yet  recognized  this  prin- 


276        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

ciple  unreservedly.  They  have  established  principles  only  for 
certain  situations  which  most  frequcntlj'  arise  in  time  of  war.  The 
idea  that  w'ar  is  being  waged  only  between  organized  troops  may 
be  admitted  unreservedly  with  regard  to  warfare  on  land.  The 
same  idea  must  be  held  to  be  true  with  regard  to  operations 
between  the  maritime  forces.  In  all  other  respects,  however,  and 
in  most  recent  times  during  which  the  modern  principles  of  war- 
fare have  asserted  themselves,  the  States  have  never  discussed 
the  problem  of  armed  resistance  on  the  part  of  enemy  merchant 
ships;  and  though  some  theorists  and  ideologists  have  insisted 
upon  the  absolute  application  of  that  principle  to  all  imaginable 
cases,  this  question,  which  has  its  very  peculiar  aspects,  cannot 
be  decided  in  the  same  way.  The  men  who  hastily  called  for 
the  acceptance  of  general  principles  have  had  no  idea  whatever 
of  the  difference  between  naval  warfare  and  warfare  on  land, 
and,  in  consequence,  have  recommended  basic  principles  which 
are  most  unreasonable. 

Resistance  of  enemj'  merchant  ships  to  capture  would  be  then 
inadmissible  only  in  case  a  rule  against  this  had  found  common 
recognition.  But  in  truth,  no  single  example  can  be  produced 
from  international  precedents  in  which  the  States  have  held 
resistance  as  illegal.  Rather,  in  the  celebrated  decision  of  Lord 
StowTll  in  the  case  of  The  CatJiarina  Elizabeth,'  resistance  was 
declared  permissible,  and  Article  10  of  the  American  Naval  War 
Code  takes  the  same  viewpoint.  Also  by  far  the  greater  num- 
ber of  authors  and  the  Institute  of  International  Law  share  this 
view. 

Also,  de  lege  ferenda,  the  prevailing  view  is  to  be  advocated. 
Should  great  merchant  ships  worth  millions  allow  themselves  to 
be  taken  by  small  ships  only  because  the  latter  comply  with  the 
requirements  of  a  so-called  warship?  Is  it  not  more  chivalrous 
to  have  the  power  of  arms  rather  than  a  (pretended)  rule  of 
international  law,  on  paper,  decide  the  matter?  It  must  be 
remembered  that  in  the  earliest  stages  of  privateering  the  mer- 
chant ships  fought  valiantly  against  the  privateers,  and  many  a 
one,  seriously  damaged,  had  to  return  to  its  base.  This  condition 
of  affairs  finally  led  to  a  stronger  military  control  over  the  priva- 
teers and  care  was  taken  that  only  strongly  equipped  ships  were 
employed  to  capture  enemy  merchant  ships.  In  time  the  priva- 
teers were  so  stoutly  armed  that  enemy  merchant  ships  sur- 
rendered voluntarily  in  ever  increasing  numbers.  With  the 
advent  of  the  modern  auxiliary  cruisers  the  possibility  has  been 
offered  merchant  ships  successfully  to  escape  capture  through 
armed  resistance.  For  what  reason  then  should  auxiliary  cruisers 
which  have  replaced  the  ancient  privateers  be  forbidden  to  engage 
in  acts  which  privateers  had  undoubtedly  been  permitted  to  en- 
gage in  before?  We  know  nothing  at  all  as  to  whether  or  not 
enemy  merchantmen   were   not   formerly   permitted   to   defend 

'  5  Robinson,  p.  206. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     277 

themselves  against  warships.  Whosoever  declares  that  resistance 
against  warships  is  forbidden,  must  prove  that  the  States  have  de- 
clared unanimously  against  resistance  to  warships  as  contrasted 
with  privateers.  If  this  were  so,  resistance  against  auxiliary 
cruisers  would  of  course  be  forbidden,  because  the  latter,  as  con- 
trasted with  privateers,  are  warships.  The  fact  that  practice  does 
not  supply  us  with  decisions  in  regard  to  the  right  of  defense 
against  warships  clearly  indicates  that  the  States  regarded  such 
an  act  as  permissible.  Are  we  to  believe  that  such  cases  did 
not  occur  or  that  a  stout  merchant  ship  invariably  surrendered 
to  a  small  warship?  In  addition  to  all  this  it  should  be  stated 
that,  when  accurately  interpreted,  the  prize  law  confers  upon 
enemy  merchant  ships  authority  to  defend  themselves  against 
any  and  all  attacks  on  the  part  of  the  warships. 

An  enemy  merchant  ship  is  therefore  entitled  to  defend  itself 
against  an  enemy  attack;  it  is  even  entitled  to  this  right  with 
regard  to  the  matter  of  visit.  For  the  visit  constitutes  the  first 
act  of  capture.  The  merchant  ship  which  has  been  attacked  may 
even  seize  the  warship  which  it  has  overcome.  This  situation 
which  corresponds  with  the  prevailing  right  is  nevertheless  sub- 
ject to  serious  misgivings  in  so  far  as  the  seizure  of  the  attacked 
merchant  ship  is  concerned,  and  this  for  the  reason  that  the 
lines  of  separation  between  attack  and  defense  can  be  easily 
infringed.^ 

The  Institute  of  International  Law,  to  which  Dr.  Wehberg  refers, 
met  at  Oxford  in  the  first  week  of  August,  1913,  exactly  one  year 
before  the  outbreak  of  the  European  War.  The  sessions  were  largely 
attended  and  publicists  representing  eighteen  different  countries  were 
present.  The  session  was  almost  exclusively  devoted  to  the  considera- 
tion of  the  proposed  manual  of  the  laws  of  maritime  warfare.  The 
draft  of  the  manual  was  carefully  considered  and  adopted  as  modi- 
fied by  fifty-three  of  the  fifty-four  members  present,  one  not  voting 
because  he  had  not  taken  part  in  the  previous  proceedings. 

For  present  purposes  it  is  only  necessary  to  call  attention  to 
Article  12  of  the  manual  as  adopted,  which  reads  as  follows : 

Article  12.  Privateering,  private  vessels,  public  vessels  not 
warships.     Privateering  is  forbidden. 

Apart  from  the  conditions  laid  down  in  Articles  3  and  fol- 
lowing, neither  public  nor  private  vessels,  nor  their  personnel, 
may  commit  acts  of  hostility  against  the  enemy. 

Both  may,  however,  use  force  to  defend  themselves  against 
the  attack  of  an  enemy  vessel.^ 

^  Das  Seekriegsrecht,  von  Hans  Wehberg  (Stuttgart,  1915),  pp.  282-286 
{Handbuch  des  Volkerrechts,  vol.  4,  parts  1  and  2). 

="  Resolutions  of  the  Institute  of  International  Laic  (New  York,  Oxford  Press 
1916),  p.  177. 


278        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

It  will  be  observed  that  by  this  article  public  vessels  (other  than 
men-of-war)  and  merchantmen  may  not  commit  acts  of  hostility 
against  the  enemy;  that  is  to  say,  not  being  commissioned  as  war 
vessels,  they  cannot  engage  in  aggressive  or  offensive  warfare.  But, 
if  attacked,  they  may,  nevertheless,  by  the  third  paragraph  of  the 
article,  defend  themselves  against  the  enemy.  When  this  article  was 
up  for  consideration,  Dr.  Triepel,  professor  of  international  law  in 
the  University  of  Berlin,  moved  that  its  third  paragraph  be  sup- 
pressed, stating  that  "a  merchantman  never  has  the  right  of  self- 
defense,  even  in  case  the  attack  directed  against  it  is  unlawful.  The 
vessel  is  not  entitled  to  sit  in  judgment  upon  this  point."  Dr.  Nie- 
meyer,  professor  of  international  law  in  the  University  of  Kiel,  ob- 
served that  the  right  of  self-defense  against  an  act  of  force  was 
self-evident  and,  like  his  colleague,  he  proposed  the  suppression  of 
the  third  paragraph,  but  for  the  very  different  reason  that  *'to  insert 
a  disposition  of  this  kind  would  be  equivalent  to  conceding  that  a 
contrary  opinion  was  possible." 

Lord  Reay,  who  had  been  a  member  of  the  British  delegation  to 
the  Second  Hague  Peace  Conference,  called  attention  to  the  impor- 
tance of  the  article,  stating  that  the  lawfulness  of  the  permission 
given  by  the  Admiralty  to  certain  large  steamers  to  carry  on  board 
four  cannon  had  been  contested  even  by  well-informed  persons.  The 
text  of  the  third  paragraph  of  Article  12  (originally  13)  would,  he 
stated,  remove  all  doubt  on  this  point.  He  therefore  asked  the  Insti- 
tute to  proclaim  for  merchantmen  under  the  given  conditions  the 
right  of  legitimate  defense.  The  Institute  thus  had  before  it  not 
merely  a  question  of  the  right  in  the  abstract  but  a  case  in  the  con- 
crete, namely,  the  right  of  British  merchantmen  to  use  arms  placed 
upon  them  for  defense  against  attack.  Dr.  Triepel's  motion  was 
put  to  a  vote  and  lost.  Another  attempt  to  amend  the  article  was 
likewise  defeated  and,  as  the  official  report  of  the  proceedings  says: 

Article  13,  which  was  proposed  by  the  Commission,  was  voted 
by  the  Institute  by  a  large  majority. 

and,  as  previously  stated,  the  manual,  containing  this  very  article, 
was  adopted  without  a  dissenting  vote.^ 

After  the  Oxford  session  of  the  Institute  of  International  Law, 
Professor  Oppenheim,  who  had  taken  part  in  the  discussions,  pub- 
lished an  article  showing  that  enemy  ships  have  the  right  to  defend 

'  Annuaire  de  I'Institut  de  Droit  International,   1913,  pp.  515-521,  600-609. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      279 

themselves  against  attack.^  Dr.  Triepel,  who,  it  will  be  remembered, 
had  moved  in  the  Oxford  session  that  merchant  ships  should  be  denied 
the  right  to  defend  themselves  against  attack,  published  a  reply  to 
Professor  Oppenheim  in  which  he  said : 

He  is  right.  The  literature  is  upon  his  side.  Not  only  in 
the  English  and  the  Anglo-American  works  on  international 
law  and  especially  on  maritime  law,  but  also  in  the  French, 
Belgian,  Italian,  and  Swedish  science  the  right  of  self-defense  as 
far  as  I  can  see  is  generally  acknowledged.  Only  in  very  isolated 
cases  a  doubt  is  ventured.  The  majority  of  the  later  German 
writers  maintain  silence  on  the  question.  In  the  older  writers, 
the  English  doctrine  is  followed.^ 

It  is  not  necessary  to  comment  upon  the  views  of  the  German 
publicists.  The  extracts  quoted  speak  for  themselves.  The  views  of 
the  Institute  of  International  Law,  although  it  is  not  an  official  body, 
are  accepted  often  as  of  greater  weight  than  the  actions  of  Govern- 
ment, whose  motives  are  sometimes  questioned;  and  it  is  common 
knowledge  that  the  labors  of  the  Institute  supplied  The  Hague  Peace 
Conferences  with  the  materials  which  its  delegates  put  in  the  form 
of  international  conventions.  Indeed,  a  great  statesman  of  our  day 
has  gone  so  far  as  to  say  that,  without  the  preliminary  work  of  the 
Institute,  the  work  of  the  Conferences  would  have  been  impossible. 

And,  finally,  the  views  of  ten  Governments  in  the  matter  of  the 
destruction  of  neutral  prizes  should  not  be  overlooked,  requiring  pas- 
sengers and  crew  to  be  saved,  even  although  the  declaration  itself 
was  not  ratified,  because,  if  the  provisions  of  the  Declaration  of 
London  were  not  wholly  declaratory  of  the  law  of  Nations,  they  never- 
theless represented  the  rules  of  conduct  which  the  great  maritime 
Powers,  in  time  of  peace,  professed  themselves  willing  to  apply  in  time 
of  war. 

But,  we  do  not  need  to  test  the  conduct  of  the  Imperial  German 
Government  by  the  views  expressed  by  its  most  distinguished  pub- 
licists, for,  after  all,  the  views  of  publicists  are  binding  only  in  so  far 
as  they  state  the  law  and  practice  of  Nations,  and  they  are  only  evi- 
dence of  this  law  and  of  this  practice. 

^  Oppenheim,  "  Die  Stellung  der  feindlichen  Kauffahrteischiffe  im  Seekrieg," 
Zeitschrift  fiir  Volkerrecht,  vol.  8,  pp.   154-159. 

'  Triepel,  "  Der  Widerstand  feindlicher  Handelsschiffe  gegen  die  Aufhringung," 
Zeitschrift  fiir  Volkerrecht,  vol.  8,  pp.  378-406. 


280        A  SURVEY  OF  INTERNATIONAL  RELATIOKS 

Section  2.   The  German  Prize  Ordinance  ^ 

We  do  not  need  to  speculate  as  to  the  general  principles  of  visit 
and  search  and  destruction  of  merchant  vessels  as  recognized  by  inter- 
national law  before  the  outbreak  of  the  war,  as  these  were  authori- 
tatively stated  in  the  rules  and  regulations  of  the  different  nations, 
and  by  no  nation  more  clearly,  positively,  and  unmistakably  than  by 
Germany  in  its  prize  ordinance,  approved  September  30,  1909,  in 
time  of  peace,  and  promulgated  on  August  3,  1914,  in  time  of  war. 
Under  the  caption  "Object  of  stoppage  and  search"  and  "Manner 
of  exercising  the  right,"  the  German  Prize  Code  says  in  Article  4: 

The  object  of  the  stoppage  and  search  of  a  merchant  vessel  is 
to  determine: 

a)  the  nationality  of  the  vessel ; 

b)  whether  she  has  contraband  on  board; 

c)  whether  she  is  assisting  the  enemy  in  an  unneutral 
manner ; 

d)  whether  she  is  guilty  of  a  breach  of  blockade. 

The  stoppage  and  search  shall  take  place  only  if  the  com- 
mander deems  that  it  will  be  successful.  All  acts  shall  be  done 
in  such  manner — even  against  the  enemy — as  to  be  compatible 
with  the  honor  of  the  German  Empire,  and  with  such  regard 
towards  neutrals  as  may  be  in  conformity  with  the  law  of  Nations 
and  the  interests  of  Germany. 

Under  the  caption  "Determination  of  national  character  of  vessel," 
the  Prize  Code  provides,  in  Article  11,  that  "the  enemy  or  neutral 
character  of  a  vessel  is  determined  by  the  flag  which  she  is  entitled  to 
fly."  After  explaining  that  the  flag  which  a  vessel  is  entitled  to  fly 
is  usually  set  forth  in  an  official  document  which  every  merchant  ves- 
sel must  have  on  board,  Article  11  stipulates  that:  "If  the  nation- 
ality of  a  vessel  cannot  be  determined  beyond  question,  more  espe- 
cially if  the  official  document  required  by  the  flag  law  of  the  par- 
ticular state  is  lacking,  the  vessel  is  to  be  treated  as  an  enemy 
vessel."  Under  the  caption  "Resistance  to  search  or  capture,"  the 
Prize  Code  says  in  Article  16  that:  "A  neutral  vessel  is  to  be  re- 
garded as  having  an  enemy  character,  if  .  .  .  (b)  it  resists  by  force 
the  measures  taken  against  it  under  the  prize  law.  Force  of  arms 
may  be  employed  against  such  vessel,  until  it  ceases  to  resist.  A  mere 
attempt  to  escape  is  not  to  be  regarded  as  a  forcible  resistance." 

"' Prisenordnung,"  Reichsgesetzhlatt,  September  30,  1909;  April  15,  1911; 
August  3,  1914;  March  26,  1915;  The  Prize  Code  of  the  German  Empire  as  in 
force  July  1,  1915  (translated  and  edited  by  Charles  Henry  Huberich  and  Richard 
King;  New  York;  Baker,  Voorhis  &  Co.,  1915). 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      281 

Part  VI  of  the  Prize  Code  is  devoted  to  procedure  in  cases  of 
stoppage,  search,  and  capture  of  neutral  vessels.  It  is  provided  that 
when  a  vessel  under  a  neutral  flag  is  stopped  to  be  searched,  this 
must  be  done  with  as  little  inconvenience  as  possible  to  the  neutral 
ship.  (Article  81.)  The  command  to  stop  is  given  by  means  of 
signals,  and  the  ensign  or  pennant  is  sooner  or  simultaneously  dis- 
played. "During  a  pursuit  the  war  ensign  need  not  be  displayed 
and  the  use  of  any  merchant  flag  is  permitted."  (Article  82.)  If  the 
vessel  does  not  stop  or  offers  resistance,  force  may  be  used  to  stop  it. 
(Article  83.)  When  the  vessel  has  stopped,  a  boarding  party,  con- 
sisting of  an  officer,  a  second  officer,  and  a  limited  number  of  un- 
armed members  of  the  crew,  conveyed  in  an  unarmed  boat,  is  sent 
from  the  cruiser  to  the  merchant  vessel.  (Article  84.)  The  com- 
mander can  under  no  circumstances  require  the  master  to  come  on 
board  the  war  vessel  or  to  send  a  boat,  members  of  the  crew,  the 
ship's  papers,  etc.,  to  the  latter.  (Article  81.)  If  conditions  of  the 
weather  make  it  impossible  to  launch  a  boat,  the  merchant  vessel  may 
be  ordered  to  follow  the  warship  until  it  is  possible  to  carry  out 
the  search.  (Article  85.)  The  method  of  conducting  the  search  is 
prescribed  in  detail  as  follows:  The  officer,  accompanied  only  by 
the  second  officer,  goes  on  board  and  requests  an  inspection  of  the 
ship's  papers.  If  the  master  refuses,  the  officer  demands  an  inspec- 
tion, and  a  further  refusal  is  good  ground  for  the  capture  of  the 
vessel.  (Article  86.)  So  far  as  possible,  the  identity  and  nation- 
ality of  the  vessel,  as  well  as  its  home  port,  port  of  sailing,  destina- 
tion, and  character  and  destination  of  its  cargo,  are  determined  from 
the  ship's  papers.  (Article  87.)  If  the  officer  concludes  from  the 
investigation  of  the  papers  that  the  vessel  is  not  subject  to  capture, 
he  releases  her,  after  making  an  entry  of  the  visit  and  search  in  the 
ship's  log.  (Article  88.)  The  master  is  entitled  to  file  with  him 
written  exceptions  to  the  manner  in  which  the  visit  took  place. 
(Article  89.) 

If,  upon  inspection  of  the  ship's  papers,  the  officer  concludes 
that  there  are  grounds  to  suspect  the  vessel,  he  proceeds  to  a  search, 
which  is  carried  out,  according  to  Article  90,  by  "a  more  minute 
determination  of  the  identity  of  the  ship  from  the  statements  in  her 
papers  (alterations  in  external  features,  marks,  shipping  marks, 
name  plates  to  be  noted),  and  an  investigation  of  the  correctness 
and  completeness  of  the  statements  in  the  ship's  papers  regarding 
the  status  of  the  vessel  and  cargo.  The  search  involves  an  examina- 
tion of  the  master,  the  crew  (in  case  there  are  grounds  for  suspect- 


282        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

ing  a  transfer  from  one  flag  to  another,  and  the  law  of  the  flag  deter- 
mines the  national  composition  of  the  crew,  there  should  be  a  com- 
parison of  the  signatures  of  the  crew  and  those  on  the  muster  roll), 
and  passengers.  No  coercion  by  threats  is  to  be  used.  The  vessel  and 
cargo  are  also  to  be  examined.  This  latter  takes  place  with  the 
assistance  of  the  boat's  crew,  which  may,  if  necessary,  be  increased, 
and,  unless  the  master  refuses,  in  his  presence.  The  master  shall 
cause  the  opening  of  the  seals  and  wrappings  or  state  the  best  man- 
ner of  opening  the  same.  So  far  as  possible  injuries  are  to  be 
avoided." 

If  the  search  cannot  be  immediately  accomplished,  it  may  be 
deferred  until  a  subsequent  time  at  a  suitable  place.  (Article  91.) 
If,  as  the  result  of  the  search,  the  officer  concludes  that  the  vessel  is 
not  subject  to  capture,  the  vessel  and  cargo  must  be  carefully  restored 
to  their  former  condition  and  released,  after  proper  entries  in  the 
ship's  log.  (Article  92.)  If  parts  of  the  cargo  only  are  subject  to 
condemnation,  the  commander  may  either  make  a  capture,  seize  the 
parts  of  the  cargo  in  question,  or  release  the  vessel  without  further 
action,  but  he  may  not  relinquish  the  right  to  seize  against  the  pay- 
ment of  money.  (Article  93.)  If  the  commander  believes  the  vessel 
subject  to  condemnation,  he  proceeds  to  a  capture  (Article  94),  the 
method  of  which  is  prescribed  in  Article  95  as  follows: 

The  capture  is  effected  by  notice,  of  which  a  protocol  is  given 
to  the  master,  placing  the  vessel  in  charge  of  a  prize  crew,  and 
raising  the  war  ensign.  If  at  the  outset  it  is  impossible  to  place 
a  prize  crew  on  board,  and  together  with  the  placing  of  such 
crew  on  board  to  raise  the  war  ensign,  the  vessel  is  to  be  ordered 
to  lower  her  flag,  and  to  follow  the  course  designated  to  her  by 
the  commander. 

The  flying  of  the  war  ensign  does  not  convert  the  vessel  into 
a  vessel  of  war. 

A  report  of  the  capture  is  sent  immediately  to  the  Admiralty. 
(Article  96.)  If,  after  capture,  it  appears  from  further  evidence  that 
the  vessel  was  captured  illegally,  it  is  released  immediately.  (Article 
97.)  Demands  for  compensation,  either  after  search  without  capture 
or  upon  release  after  capture,  are  adjusted,  if  possible,  before  the 
release  of  the  vessel.     (Articles  92  and  97.) 

Part  VIII  of  the  Prize  Code  is  devoted  to  the  method  of  dealing 
with  captured  vessels  and  cargo  seized.  Article  113  deals  with  the 
destruction  of  prizes  and  is  as  follows: 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    283 

Where  a  neutral  vessel  has  been  captured  under  the  circum- 
stances set  forth  in  Article  39,  for  carrying  contraband,  or  in 
Articles  77  and  78,  for  breach  of  blockade,  or  in  Article  51,  for 
rendering  unneutral  services,  the  commander  may  destroy  the 
same,  provided  that: 

a)  the  vessel  is  subject  to  condemnation  .  .  .  and,  in 
addition  thereto, 

b)  the  bringing  into  port  would  subject  the  war  vessel  to 
danger,  or  be  liable  to  impede  the  success  of  the  operations  in 
which  it  is  at  the  time  engaged.  Among  other  circumstances, 
this  may,  inter  alia,  be  assumed  to  be  the  case,  if : 

a)  the  vessel,  on  account  of  its  defective  condition  or 
by  reason  of  deficiency  of  supplies,  cannot  be  brought  into 
port;  or 

h)  the  vessel  cannot  follow  the  war  vessel,  and  is  there- 
fore liable  to  recapture;  or 

c)  the  proximity  of  the  enemy  forces  gives  ground  for 
a  fear  of  recapture ;  or 

d)  the  war  vessel  is  not  in  a  position  to  furnish  an  ade- 
quate prize  crew. 

Article  116  relates  to  the  safety  of  persons  on  board  and  reads  liter- 
ally as  follows: 

Before  proceeding  to  a  destruction  of  the  vessel,  the  safety 
of  all  persons  on  board,  and,  so  far  as  possible,  their  effects,  is 
to  be  provided  for,  and  all  ship's  papers  and  other  evidentiary 
material,  which,  according  to  the  views  of  the  persons  at  interest, 
is  of  value  for  the  formulation  of  the  judgment  of  the  prize  court, 
are  to  be  taken  over  by  the  commander. 

It  will  be  observed  that,  in  the  provisions  of  the  Prize  Code  which 
have  been  quoted,  there  is  no  reference  to  visit  and  search  of  mer- 
chant vessels  of  the  enemy,  and  the  articles  which  have  been  quoted 
apply  expressly  to  neutral  merchantmen.  There  are,  however,  several 
statements  from  which  a  neutral  could  presume,  although  apparently 
the  German  authorities  have  not  drawn  this  conclusion,  that  mer- 
chant vessels  of  the  enemy  were  entitled  to  the  formalities  of  visit 
and  search.  Indeed,  the  very  opening  paragraph  of  the  Prize  Code 
is  more  than  an  intimation.    This  paragraph  reads  literally: 

During  a  war  the  commanders  of  H.  M.  ships  of  war  have 
the  right  to  stop  and  search  enemy  and  neutral  merchant  vessels, 
and  to  seize — and,  in  exceptional  cases,  to  destroy — the  same, 
together  with  the  enemy  and  neutral  goods  found  thereon. 

In  the  second  article  it  is  stated  that  ''public  vessels  of  the  enemy 
are  confiscable  under  the  laws  of  war,  without  further  proceedings," 


284        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

which  would  seem  to  imply  that  private  vessels  are  subject  to  further 
proceedings.  It  is,  therefore,  important  to  determine  what  are  and 
what  are  not  private  vessels.  This  the  next  paragraph  of  the  article 
proceeds  to  do  and  at  the  same  time  to  lay  down  the  ear-marks  of 
public  vessels. 

Public  vessels  comprise  ships  of  war  as  well  as  ships  used 
in  the  public  service  of  and  subject  to  the  command  of  the  state. 
Other  ships,  the  property  of  the  state,  are  placed  in  the  same 
category. 

The  necessary  criteria  of  a  ship  of  war  are:  the  war  ensign 
(usually  in  conjunction  with  the  pennant),  a  commander 
appointed  by  the  state,  whose  name  appears  in  the  list  of  offi- 
cers of  the  navy,  and  a  crew  under  naval  discipline. 

A  proper  construction  of  this  would  seem  to  be  that,  if  a  vessel  did 
not  meet  these  requirements  it  was  not  to  be  considered  a  public 
vessel,  although  it  is  only  fair  to  add  that  it  does  not  of  necessity 
follow  that  all  vessels  not  war  vessels  are  to  be  considered  as  entitled 
to  the  privileges  of  merchantmen.  However,  some  light  appears  to 
be  thrown  on  the  subject  by  the  schedule  annexed  to  the  Prize  Code, 
dated  June  22,  1914,  prepared  apparently  in  contemplation  of  war. 
This  schedule  consists  of  two  paragraphs,  the  first  relating  to  offen- 
sive action  of  an  armed  ship,  the  second  dealing  with  the  resistance 
of  an  armed  ship  to  measures  taken  against  it  and  the  treatment 
to  be  accorded  it.    Thus : 

1.  The  exercise  of  the  right  of  stoppage,  search,  and  cap- 
ture, as  well  as  any  attack  made  by  an  armed  merchant  vessel 
against  a  German  or  neutral  merchant  vessel  is  piracy.  The 
crew  is  to  be  dealt  with  under  the  ordinance  relating  to  extraor- 
dinary martial  law. 

2.  If  an  armed  enemy  merchant  vessel  offers  armed  resist- 
ance against  measures  taken  under  the  law  of  prize,  such  resist- 
ance is  to  be  overcome  with  all  means  available.  The  enemy  gov- 
ernment bears  all  responsibility  for  any  damages  to  the  vessel, 
cargo,  and  passengers.  The  crew  are  to  be  taken  as  prisoners 
of  war.  The  passengers  are  to  be  left  to  go  free,  unless  it 
appears  that  they  participated  in  the  resistance.  In  the  latter 
case  they  may  be  proceeded  against  under  extraordinary  martial 
law. 

The  wording  of  this  schedule  seems  to  make  it  clear  that  we 
are  here  dealing  with  "an  armed  merchant  vessel"  which  has  not 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     285 

been  incorporated  in  the  navy  and  which  is  not  commanded  by  a 
naval  officer,  or  with  the  crew  subject  to  military  discipline.  Other- 
wise it  would  have  the  right  of  stoppage,  search,  and  capture,  which  a 
merchant  vessel  would  not  possess.  This  interpretation  seems  to  be 
confirmed  by  the  second  paragraph,  because  by  its  express  terms  ''an 
armed  merchant  vessel"  in  the  sense  of  the  schedule  appears  to  be 
one  carrying  "cargo  and  passengers,"  and  it  is  well  known  that 
men-of-war  carry  neither  cargo  nor  passengers.  Again,  the  state- 
ment that  "the  crew  are  to  be  taken  as  prisoners  of  war"  can  only 
refer  to  a  merchantman,  because  it  would  be  unnecessary  to  state 
that  the  crew  of  a  war  vessel  should  be  made  prisoners  of  war  not- 
withstanding resistance,  whereas  it  might  be  doubted  whether  the 
crew  of  an  armed  merchant  vessel  which  resisted  would  be  treated 
as  prisoners  of  war  or,  like  passengers  taking  part  in  resistance,  sub- 
jected to  the  extraordinary  provisions  of  martial  law. 

However  this  may  be,  the  American  Government  from  the  begin- 
ning to  the  end  of  its  neutrality  considered  a  merchant  ship,  armed 
for  defensive  purposes,  and  only  using  force  as  a  defense  against 
attack,  as  a  merchantman  and  subject  to  the  treatment  of  a  mer- 
chantman, namely,  to  visit  and  search  and  the  preservation  of  the 
lives  of  the  officers,  crew,  and  passengers.  Although  the  United  States 
did  not  concede  the  right  to  destroy  neutral  prizes,  it  had  a  right 
to  expect,  from  the  express  provisions  of  the  German  Prize  Ordinance 
of  August  3,  1914,  that,  before  resorting  to  this  extreme  measure, 
the  merchantman  should  be  subjected  to  visit  and  search  in  order 
that  the  neutral  vessel  should  not  by  mistake  be  treated  as  an  enemy 
vessel,  and  that,  in  any  event,  the  lives  of  persons  aboard,  of  one  as 
well  as  the  other,  should  be  saved.  This  was  expressly  provided  for 
in  respect  to  neutral  merchantmen  and  it  was  incidentally  provided 
for  in  the  case  of  armed  enemy  merchant  vessels,  because  not  even  the 
most  powerful  and  efficient  of  belligerents  can  make  of  the  dead 
prisoners  of  war. 

Section  3.   The  Prussian- Amebic  an  Treaties 

But  whether  the  German  publicists  whose  views  have  been  in- 
voked would  condemn  or  justify  the  action  of  the  Imperial  German 
Government  in  its  conduct  upon  the  high  seas,  or  whether  the  views 
of  publicists  of  other  nationalities  would  condemn  or  justify  that 
action,  is  immaterial  from  the  legal,  although  not  from  the  moral, 
point  of  view,  because  the  Imperial  German  Government  was  not  a 


286        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

free  agent  or,  to  use  a  favorite  German  expression,  did  not  have  a 
free  hand  in  these  matters,  as  it  was  bound  hand  and  foot,  so  to  speak, 
by  the  provisions  of  treaties  concluded  long  before  the  war,  repeatedly 
recognized  and  invoked  before  the  war,  and  indeed  cited  by  the 
Imperial  German  Government  itself  during  the  course  of  the  war  as 
binding  that  Government  and  the  United  States. 

The  provisions  of  these  treaties  are  not  the  result  of  a  sudden 
inspiration,  but  of  negotiation  extending  over  many  years,  and  they 
had  stood  the  test  of  the  wars  of  the  French  Revolution  and  of  the 
Empire.  The  treaty  of  May  1,  1828,  between  Prussia  and  the  United 
States,  in  force  and  applicable,  in  the  opinion  of  both  Governments, 
to  the  German  Empire  as  well  as  to  the  United  States,  revived 
the  twelfth  article  of  the  first  treaty  between  the  two  countries  of 
September  10,  1785,  and  articles  thirteen  to  twenty-four  of  the  sec- 
ond treaty  of  July  11,  1799,  between  them. 

Article  12  of  the  treaty  of  1785  reads  as  follows: 

If  one  of  the  contracting  parties  should  be  engaged  in  war 
with  any  other  Power,  the  free  intercourse  and  commerce  of  the 
subjects  or  citizens  of  the  party  remaining  neuter  with  the  bel- 
ligerent Powers  shall  not  be  interrupted.  On  the  contrary,  in 
that  case,  as  in  full  peace,  the  vessels  of  the  neutral  party  may 
navigate  freely  to  and  from  the  ports  and  on  the  coasts  of  the 
belligerent  parties,  free  vessels  making  free  goods,  insomuch 
that  all  things  shall  be  adjudged  free  which  shall  be  on  board 
any  vessel  belonging  to  the  neutral  party,  although  such  things 
belong  to  an  enemy  of  the  other;  and  the  same  freedom  shall 
be  extended  to  persons  who  shall  be  on  board  a  free  vessel, 
although  they  should  be  enemies  to  the  other  party,  unless  they 
be  soldiers  in  actual  service  of  such  enemy.' 

This  article  means,  if  it  means  anything,  that  the  United  States 
had  the  right  of  free  intercourse  and  commerce  with  Germany's 
enemy  or  enemies  to  the  same  degree  and  under  the  same  conditions 
as  if  war  had  not  broken  out  and  as  if  the  world  were  at  peace.  The 
article  does  not  stop  here,  but  states  that  the  principle  of  free  ships, 
free  goods,  shall  apply  not  merely  to  the  vessel  and  to  its  cargo  but 
to  all  persons  on  board,  "although  they  should  be  enemies  to  the 
other  party,"  with  the  very  proper  restriction,  "unless  they  be  sol- 
diers in  actual  service  of  such  enemy."  And  yet  the  Imperial  Ger- 
man Government,  in  the  teeth  of  this  treaty,  has  prohibited  all  trade 
with  Great  Britain  and  has  actually  sunk  American  vessels  attempt- 

1  Malloy's  Treaties,  etc.,  between  the  United  States  and  Other  Powers,  vol. 
2,  p.  1481. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      287 

ing  to  trade  with  Great  Britain,  together  with  the  neutral  members 
of  the  crew  and  passengers  on  board. 

It  was  not  to  be  expected  that  there  should  be  no  restrictions 
placed  upon  intercourse  with  Prussia's  enemy,  even  although  the 
article  under  consideration  seemed  to  imply  that  intercourse  and 
commerce  with  the  enemy  should  be  free  and  untrammeled.  Inci- 
dents would  be  sure  to  arise  if  the  matter  were  left  here.  Therefore, 
Article  13  of  the  treaty  of  1799,  dealt  with  and  specified  the  com- 
merce which  should  be  illegal  in  order,  as  the  treaty  said,  to  prevent 
"all  the  difficulties  and  misunderstandings  that  usually  arise  respect- 
ing merchandise  of  contraband."  It  therefore  enumerated  the  articles 
that  should  be  considered  contraband  by  the  two  countries,  stating 
them  generally  as  "arms,  ammunition,  and  military  stores  of  every 
kind."  In  the  same  connection,  indeed  in  the  same  sentence  and 
without  interruption,  the  treaty  provided  that  "no  such  articles  car- 
ried in  the  vessels,  or  by  the  subjects  or  citizens  of  one  of  the  parties 
to  the  enemies  of  the  other,  shall  be  deemed  contraband,  so  as  to 
induce  confiscation  or  condemnation  and  a  loss  of  property  to 
individuals. ' ' 

It  was  likewise  foreseen  that  the  delivery  of  contraband  to  the 
enemy  would  prejudice  the  warlike  operations  of  the  belligerent 
party,  but  the  treaty  was  to  be  satisfied,  not  by  causing  loss  to  the 
contracting  party  happening  to  be  neutral,  but  by  enabling  the  party 
belligerent  to  intercept  and  to  purchase  the  contraband  for  its  own 
use,  thus  supplying  its  needs  at  its  own  expense  and  depriving  the 
enemy  of  the  contraband  without  causing  loss  to  the  other  contract- 
ing party.    Thus  Article  13  continues : 

Nevertheless,  it  shall  be  lawful  to  stop  such  vessels  and 
articles,  and  to  detain  them  for  such  length  of  time  as  the  captors 
may  think  necessary  to  prevent  the  inconvenience  or  damage 
that  might  ensue  from  their  proceeding,  paying,  however,  a 
reasonable  compensation  for  the  loss  such  arrest  shall  occasion 
to  the  proprietors :  And  it  shall  further  be  allowed  to  use  in  the 
service  of  the  captors  the  whole  or  any  part  of  the  military  stores 
so  detained,  paying  the  owners  the  full  value  of  the  same,  to  be 
ascertained  by  the  current  price  at  the  place  of  its  destination.^ 

Foreseeing  further  that  disputes  were  likely  to  occur  as  to  the 
price  to  be  paid  for  the  articles  thus  detained  and  used,  it  was 
wisely  provided  that  neither  party  was  to  determine  the  price,  but 
that,  as  this  would  require  negotiation  and  might  result  in  disagree- 

^  Malloy,  Treaties  between  the  United  States  and  Other  Powers,  vol.  2,  p.  1481. 


288        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

ment,  the  price  at  the  place  of  delivery,  however  large  it  might  be, 
was  to  be  accepted  by  the  parties  and  paid  by  the  belligerent  avail- 
ing itself  of  the  right  to  possess  itself  of  the  articles. 

But  this  was  not  all.  It  was  further  foreseen  that  detaining  the 
articles  for  a  considerable  period  of  time  might  throw  a  loss  upon 
the  neutral  owner  without  a  corresponding  advantage  to  the  belliger- 
ent, whose  purpose  was  to  prevent  delivery  to  the  enemy.  Therefore 
the  treaty  contains  a  provision  calculated  to  prevent  the  difficulties 
that  were  sure  to  arise  unless  the  neutral  party  were  permitted,  by 
delivery  to  the  belligerent,  to  escape  the  consequences  of  unlimited 
detention  on  the  part  of  a  belligerent.    This  provision  runs  as  follows : 

But  in  the  case  supposed,  of  a  vessel  stopped  for  articles 
heretofore  deemed  contraband,  if  the  master  of  the  vessel  stopped 
will  deliver  out  the  goods  supposed  to  be  of  contraband  nature, 
he  shall  be  admitted  to  do  it,  and  the  vessel  shall  not  in  that 
ease  be  carried  into  any  port,  nor  further  detained,  but  shall  be 
allowed  to  proceed  on  her  voyage. 

It  would  seem  to  need  no  legal  subtlety  to  condemn  the  action  of  the 
Imperial  German  Government  in  stopping  in  the  South  Atlantic 
waters  the  American  schooner  Frye  on  a  voyage  to  Great  Britain, 
carrying  articles  which  the  Imperial  Government  declared  to  be 
contraband  and,  instead  of  allowing  the  master  to  deliver  out  the 
articles  and  to  proceed  upon  his  voyage  without  delay,  to  sink  the 
vessel. 

It  was  likewise  foreseen  that  difficulties  were  likely  to  arise  regard- 
ing the  identity  of  each  other's  vessels  in  the  matter  of  visit  and 
search  when  one  of  the  contracting  parties  was  at  war  with  another 
party.  Therefore  "to  insure  to  the  vessels  of  the  two  contracting 
parties  the  advantage  of  being  readily  and  certainly  known  in  time 
of  war,"  the  two  nations  agreed  by  Article  14  that  their  vessels 
should  carry  certain  sea-letters  and  documents,  to  wit:  a  passport, 
charter  party,  and  a  list  of  the  ship's  company.  The  meaning  of 
this  provision  would  seem  to  be  clear,  that  a  vessel  provided  with 
these  papers  was  to  be  considered  as  an  American  vessel  and  as  such 
entitled  to  the  protection  of  the  treaty. 

To  prevent  all  disorder  and  violence  in  eases  of  visit  and  search 
Article  15  stipulated  that: 

When  the  vessel  of  the  neutral  party,  sailing  without  convoy, 
shall  be  met  by  any  vessel  of  war,  public  or  private,  of  the 
other  party,  such  vessel  of  war  shall  not  approach  within  cannon* 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      289 

shot  of  the  said  neutral  vessel,  nor  send  more  than  two  or 
three  men  in  their  boat  on  board  the  same  to  examine  her  sea- 
letters  or  passports.  And  all  persons  belonging  to  any  vessel  of 
war,  public  or  private,  who  shall  molest  or  injure  in  any  manner 
whatever,  the  people,  the  vessels,  or  effects  of  the  other  party, 
shall  be  responsible  in  their  persons  and  property  for  damages 
and  interest,  sufficient  security  for  which  shall  be  given  by  all 
commanders  of  private  armed  vessels  before  they  are  com- 
missioned/ 

It  is  difficult  to  comment  on  the  provisions  of  these  articles  with- 
out seeming  to  reflect  upon  the  intelligence  of  the  reader,  as  they 
either  mean  what  they  say  or  are  a  solemn  mockery,  unworthy  of 
two  great  Nations.  They  mean  and  they  were  intended  to  mean  that 
the  belligerent  had  a  right  under  international  law  and  by  the  treaty 
to  ascertain  the  character  of  the  vessel  claiming  to  be  neutral,  and, 
in  so  far  as  a  vessel  claiming  to  be  American  was  concerned,  the 
treaty  provided  the  evidence  to  establish  American  character  and 
the  formalities  of  visit  and  search  in  order  to  ascertain  the  destina- 
tion and  nature  of  its  cargo.  It  hardly  needs  to  be  called  to  the 
reader's  attention  that  the  action  of  German  submarines  has  been 
opposed  alike  to  the  letter  and  the  spirit  of  this  treaty,  and  that,  as 
far  as  the  United  States  was  concerned,  the  submarine  has  operated 
illegally  because  it  has  not  allowed  American  vessels  free  intercourse 
and  commerce  with  Germany's  enemies,  it  has  not  "admitted"  the 
vessel  to  proceed  upon  its  voyage  upon  delivery  out  of  the  cargo  when 
contraband,  and  it  has  not  observed  the  formalities  of  visit  and  search 
prescribed  by  the  two  countries,  binding  the  conduct  as  well  as  the 
conscience  of  each. 

If  it  should  be  contended  that  the  provisions  of  these  treaties, 
acceptable  in  1828,  had  become  unacceptable  in  1914  as  tending  to 
restrict  the  conduct  of  the  party  belligerent  without  a  corresponding 
benefit  to  the  neutral  party,  it  should  be  said  that,  upon  the  eve  of  the 
outbreak  of  the  war,  as  well  as  after  its  outbreak,  the  Imperial  Ger- 
man Government  itself  insisted  that  the  relations  between  the  two 
countries  were  determined  by  the  provisions  of  the  Prussian  treaties, 
which  each  country  considered  as  binding  Prussia  when  it  became 
merged  in  the  North  German  Confederation,  as  binding  the  North 
German  Confederation  of  which  Prussia  became  a  part,  and  as  still 
binding  Prussia  when  the  North  German  Confederation  was  dis- 
solved and  the  German  Empire  was  formed  under  the  leadership  of 
Prussia. 

'  Malloy,  Treaties  between  the  United  States  and  Other  Powers,  vol.  2,  p.  1482. 


CHAPTER   XV 
RENEWAL   OF   SUBMARINE   WARFARE 

On  January  31,  1917,  more  than  a  month  after  the  President  of 
the  United  States  had  tried  to  elicit  from  the  belligerents  a  state- 
ment of  the  terms  of  peace  which  they  would  consider  in  order  to 
furnish  a  basis  of  negotiations  tending  towards  peace,  and  within  a 
week  of  the  address  of  the  President  to  the  Senate,  in  which  he  out- 
lined the  international  conditions  and  the  principles  which,  in  his 
opinion,  were  requisite  to  a  durable  peace — that  is  to  say,  while  the 
President  of  the  United  States  was  thinking  of  the  means  whereby 
peace  might  be  brought  about  and  maintained,  not  whereby  war 
might  be  declared  and  prosecuted — a  note  was  addressed  by  the 
German  Ambassador  to  Secretary  Lansing,  stating  that  on  and  after 
the  1st  day  of  February,  1917,  submarine  warfare  would  be  prose- 
cuted without  distinction  between  neutral  and  enemy  ships  found 
within  the  proscribed  areas,  thus  withdrawing  from  the  United  States 
the  guarantees  hitherto  made,  and  especially  the  pledge  of  May  4, 
1916. 

This  action  was  foreshadowed  in  the  Zimmermann  letter,  dated 
January  19,  1917,  addressed  to  the  German  Minister  in  Mexico,  which 
was  intercepted  on  its  passage  through  the  United  States  by  Ameri- 
can authorities.  This  letter  indicates  a  determination  already  reached 
by  Germany  to  prosecute  submarine  warfare  even  more  ruthlessly 
than  theretofore,  notwithstanding  its  assurance  to  the  United  States 
and  notwithstanding  the  possibility  of  rupture  with  the  United  States, 
although  the  Imperial  German  Government  affected  to  believe  that 
the  United  States  might  be  kept  a  neutral.  But  in  the  event  that  the 
United  States  resented,  as  it  did,  the  repudiation  of  Germany's 
promises  and  resorted  to  arms,  an  alliance  was  to  be  made  in  time 
of  peace  with  Mexico,  with  which  Germany  was  friendly,  and  with 
Japan,  with  which  it  was  at  war,  for  the  partition  of  the  United 
States.^ 

The  German  Ambassador's  note  of  January  31,  1917,  opens  with 
language  of  friendly  regard  and  commendation  of  the  President's 

^  For  a  full  consideration  of  the  Zimmermann  letter  see  infra,  p.  309. 

290 


A  SURVEY  OF  INTERNATIONAL  RELATIONS         291 

motives  and  expresses  the  regret  of  his  country  at  the  impossibility 
of  realizing  the  President's  lofty  ideal  because  of  the  attitude  of  its 
enemies.  These  observations  are  evidently  intended  to  show  that  a 
new  situation  has  been  ''forced"  upon  the  Imperial  German  Govern- 
ment which  it  must  meet  with  vigor  and  effect,  because  the  Ambas- 
sador, after  this  introduction,  begins  what  may  be  regarded  as  the 
second  part  of  his  note : 

A  new  situation  has  thus  been  created  which  forces  Germany 
to  new  decisions.  Since  two  years  and  a  half  England  is  using 
her  naval  power  for  a  criminal  attempt  to  force  Germany  into 
submission  by  starvation.  In  brutal  contempt  of  international 
law  the  group  of  Powers  led  by  England  does  not  only  curtail 
the  legitimate  trade  of  their  opponents  but  they  also  by  ruth- 
less pressure  compel  neutral  countries  either  to  altogether  forego 
every  trade  not  agreeable  to  the  Entente  Powers  or  to  limit  it 
according  to  their  arbitrary  decrees.  The  American  Government 
knows  the  steps  which  have  been  taken  to  cause  England  and  her 
allies  to  return  to  the  rules  of  International  Law  and  to  respect 
the  freedom  of  the  seas.  The  English  Government,  however, 
insists  upon  continuing  its  war  of  starvation,  which  does  not 
at  all  affect  the  military  power  of  its  opponents,  but  compels 
women  and  children,  the  sick  and  the  aged  to  suffer,  for  their 
country,  pains  and  privations  which  endanger  the  vitality  of 
the  nation.  Thus  British  tyranny  mercilessly  increases  the  suf- 
ferings of  the  world,  indifferent  to  the  laws  of  humanity,  indif- 
ferent to  the  protests  of  the  Neutrals  whom  they  severely  harm, 
indifferent  even  to  the  silent  longing  for  peace  among  England's 
own  allies.  Each  day  of  the  terrible  struggle  causes  new  destruc- 
tion, new  sufferings.  Each  day  shortening  the  war  will,  on  both 
sides,  preserve  the  life  of  thousands  of  brave  soldiers  and  be  a 
benefit  to  mankind.^ 

It  seems  proper  to  repeat  in  this  connection  that  international 
law  allows  a  belligerent,  both  by  land  and  sea,  to  starve  its  opponent 
into  submission  and  that,  if  Great  Britain  did  not  have  the  right 
to  starve  its  enemy  into  submission,  Germany  would  not  have  the 
right  to  starve  Great  Britain  into  submission.  The  methods  adopted 
by  Great  Britain  to  effect  this  right  may  be  open  to  criticism  and 
the  methods  employed  by  the  Imperial  German  Government  may 
likewise  be  open  to  criticism,  without,  however,  affecting  the  right  to 
starve  the  enemy  by  means  recognized  and  allowed  by  the  law  of 
Nations.  The  impossibility  of  the  German  statement,  however,  for 
present  purposes  lies  in  the  fact  that  the  unrestricted  warfare  which 

'  OflBcial  text  published  by  the  Department  of  State. 


292        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  note  and  its  inclosed  memorandum  announced  is  put  upon  the 
basis  of  retaliation  for  the  illegal  acts  of  Great  Britain.    Thus : 

The  Imperial  Government  could  not  justify  before  its  own 
conscience,  before  the  German  people,  and  before  history  the 
neglect  of  any  means  destined  to  bring  about  the  end  of  the 
war.  Like  the  President  of  the  United  States  the  Imperial 
Government  had  hoped  to  reach  this  goal  by  negotiations.  After 
the  attempts  to  come  to  an  understanding  with  the  Entente 
Powers  have  been  answered  by  the  latter  with  the  announcement 
of  an  intensified  continuation  of  the  war,  the  Imperial  Govern- 
ment— in  order  to  serve  the  welfare  of  mankind  in  a  higher 
sense  and  not  to  wrong  its  own  people — is  now  compelled  to  con- 
tinue the  fight  for  existence,  again  forced  upon  it,  with  the  full 
employment  of  all  the  weapons  which  are  at  its  disposal.^ 

After  these  statements  of  a  general  nature,  suggesting  but  not 
actually  declaring  an  intention  to  resort  to  submarine  warfare,  unless 
it  is  conveyed  by  the  expression  "with  the  full  employment  of  all 
the  weapons  at  its  disposal,"  the  Ambassador  concludes  this  remark- 
able communication  with  an  expression  of  trust  and  of  hope,  which, 
with  the  Sussex  correspondence  in  mind,  should  have  seemed  to  him 
as  unjustified  as  it  certainly  did  appear  unjustified  to  the  President, 
the  Secretary  of  State,  and  to  the  American  people,  ''that  the  people 
and  Government  of  the  United  States  will  understand  the  motives 
for  this  decision  and  its  necessity,"  and  "that  the  United  States  may 
view  the  new  situation  from  the  lofty  heights  of  impartiality  and 
assist,  on  their  part,  to  prevent  further  misery  and  avoidable  sacri- 
fice of  human  life. ' '  ^ 

The  Ambassador  then  refers  to  "two  memoranda  regarding  the 
details  of  the  contemplated  military  measures  at  sea,"  which  he  in- 
closed, announcing  unrestricted  submarine  warfare  contrary  to  the 
assurances  given  to  the  American  Government  and  in  derogation  of 
the  principles  stated  in  the  communication  transmitting  them. 

The  first  memorandum  is  a  general  announcement  in  the  language 
of  the  Zimmermann  note  of  "submarine  warfare  unrestricted"  and 
the  "employment  of  ruthless  submarine  warfare."  The  second  pre- 
scribes the  area  in  which  "submarine  warfare  unrestricted"  and  the 
"employment  of  ruthless  submarine  warfare"  will  be  prosecuted. 
The  first  memorandum  is  a  restatement  of  the  views  of  the  Imperial 

*  Official  text  published  by  the  Department  of  State. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      293" 

German  Government  contained  in  its  previous  notes,  and  more  espe- 
cially in  the  note  of  the  Ambassador  accompanying  the  memorandum. 
It  states  that  ''Germany  has  so  far  not  made  unrestricted  use  of  the 
weapon  she  possesses  in  her  submarines";  that  "Germany  is  unable 
further  to  forego  the  full  use  of  her  submarines";  that  the  United 
States,  understanding  the  situation  forced  upon  Germany  by  the 
brutal  methods  of  warfare  adopted  by  Germany's  enemies  and  their 
determination  to  destroy  the  Central  Powers,  ''will  further  realize 
that  the  now  openly  disclosed  intentions  of  the  Entente  Allies  give 
back  to  Germany  the  freedom  of  action  which  she  reserved  in  her 
note  addressed  to  the  Government  of  the  United  States  on  May  4, 
1916." 

The  reservation  referred  to  was  the  freedom  of  action  apparently 
to  prosecute  submarine  warfare  unrestricted  and  ruthless  submarine 
warfare  in  case  the  United  States  did  not  secure  from  Great  Britain 
the  renunciation  of  the  illegal  practices  copiously  set  forth  in  the 
various  German  notes  to  the  United  States.  Contenting  itself  with 
this  reference  without  a  quotation  of  the  pledge  and  of  the  reserva- 
tion, the  memorandum  thus  continues: 

Under  these  circumstances  Germany  will  meet  the  illegal 
measures  of  her  enemies  by  forcibly  preventing  after  February  1, 
1917,  in  a  zone  around  Great  Britain,  France,  Italy,  and  in  the 
Eastern  Mediterranean,  all  navigation,  that  of  neutrals  included, 
from  and  to  England  and  from  and  to  France,  etc.,  etc.  All  ships 
met  within  that  zone  will  be  sunk.^ 

It  will  again  be  observed  that  this  act  is  retaliation,  and  the  final 
justification  of  it  and  the  hope  of  concurrence  in  its  provisions  are 
thus  stated  in  what  is  believed  to  be  the  final  note  on  this  question 
to  the  United  States.    It  is  therefore  quoted  in  full : 

The  Imperial  Government  is  confident  that  this  measure  will 
result  in  a  speedy  termination  of  the  war  and  in  the  restoration 
of  peace  which  the  Government  of  the  United  States  has  so 
much  at  heart.  Like  the  Government  of  the  United  States,  Ger- 
many and  her  allies  had  hoped  to  reach  this  goal  by  negotia- 
tions. Now  that  the  war,  through  the  fault  of  Germany's  ene- 
mies, has  to  be  continued,  the  Imperial  Government  feels  sure 
that  the  Government  of  the  United  States  will  understand  the 
necessity  of  adopting  such  measures  as  are  destined  to  bring 
about  a  speedy  end  of  the  horrible  and  useless  bloodshed.    The 

*  OflBcial  text  published  by  the  Department  of  State. 


294        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Imperial  Government  hopes  all  the  more  for  such  an  under- 
standing of  her  position,  as  the  neutrals  have,  under  the  pressure 
of  the  Entente  Powers,  suffered  great  losses,  being  forced  by  them 
either  to  give  up  their  entire  trade  or  to  limit  it  according  to 
conditions  arbitrarily  determined  by  Germany's  enemies  in  vio- 
lation of  international  law.^ 

^  OflBcial  text  published  by  the  Department  of  State. 


CHAPTER   XVI 

THE     SEVERANCE     OF     DIPLOMATIC     RELATIONS     AND 
PROCLAMATION     OF     ARMED     NEUTRALITY 

On  February  3,  1917,  the  President  of  the  United  States  appeared 
before  the  Congress,  in  which  is  lodged  the  war-making  power,  and 
addressed  its  members  upon  the  situation  resulting  from  the  proc- 
lamation of  January  31,  1917,  in  which  the  Imperial  German  Gov- 
ernment stated  its  intention  to  "begin  submarine  warfare  unre- 
stricted, ' '  and  outlined  what,  in  his  opinion,  the  United  States  should 
do  under  the  changed  conditions.  The  President  recalled  the  note 
of  April  18,  1916,  referring  to  the  sinking  of  The  Sussex,  in  which 
the  United  States  declared  that,  unless  the  Imperial  German  Govern- 
ment should  cease  "its  present  methods  of  warfare  against  passenger 
and  freight-carrying  vessels,"  the  United  States  would  be  obliged  to 
sever  all  diplomatic  relations  with  that  Government.  The  German 
pledge  of  May  4, 1916,  in  reply  to  this  warning  on  behalf  of  the  United 
States,  stated  that  "In  accordance  with  the  general  principles  of  visit 
and  search  and  destruction  of  merchant  vessels  recognized  by  inter- 
national law,  such  vessels,  both  within  and  without  the  area  declared 
as  naval  war  zone,  shall  not  be  sunk  without  warning  and  without 
saving  human  lives,  unless  these  ships  attempt  to  escape  or  offer 
resistance."  '  The  President  next  quoted  the  acceptance  of  this  pledge, 
contained  in  the  note  of  May  8,  1916,  rejecting,  however,  the  con- 
ditions attached  to  the  German  pledge  that  neutrals  could  not  expect 
Germany  to  live  up  to  her  pledge  "if  her  enemy  is  permitted  to 
continue  to  apply  at  will  methods  of  warfare  violating  the  rules  of 
international  law."  After  mentioning  that  the  German  Government 
did  not  reply  to  the  note  of  May  8th,  and  quoting  the  declaration  of 
the  31st  of  January  that  all  ships  met  within  the  zone  will  be  sunk,  the 
President  informed  the  Congress  that  he  had  directed  the  Secretary 
of  State  "to  announce  to  His  Excellency  the  German  Ambassador 
that  all  diplomatic  relations  between  the  United  States  and  the  Ger- 
man Empire  are  severed,  and  that  the  American  Ambassador  at  Berlin 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,   1916,  p.   198. 

295 


296        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

will  immediately  be  withdrawn ;  and,  in  accordance  with  this  decision, 
to  hand  to  His  Excellency  his  passports,"  ' 

In  thus  severing  diplomatic  relations  between  the  two  countries 
the  President  did  not,  however,  contemplate  war,  although  its  possi- 
bility was  present  to  his  mind.  He  apparently  took  this  step  in  order 
to  show  the  German  Government  that,  without  a  change  of  policy 
on  its  part,  the  United  States  would  resort  to  war  in  defense  of  its 
rights,  although  it  preferred  peace  to  war  if  in  peace  and  through 
peace  justice  could  be  secured.  He  hoped  against  hope,  as  events 
showed,  that,  when  brought  face  to  face  with  the  inevitable  conse- 
quences of  a  refusal  to  comply  with  the  requirements  of  international 
law,  the  German  Government  would,  if  not  for  the  sake  of  humanity 
at  least  for  the  sake  of  that  friendship  which  Germany  had  repeat- 
edly proclaimed  in  its  notes  to  the  United  States  and  in  accordance 
with  the  treaties  existing  between  the  two  countries,  finally  yield  to 
justice  what  the  United  States  would  otherwise  seek  to  obtain  by 
force. 

The  Secretary  of  State  complied  with  the  directions  of  the  Presi- 
dent, handing  passports  to  the  Imperial  German  Ambassador  and  the 
personnel  of  the  Imperial  German  Embassy  and  securing  for  them 
safe  conducts  in  order  that  they  might  enjoy,  as  a  concession  from 
their  enemies,  that  freedom  of  the  seas  which  they  were  unwilling 
to  grant  to  their  fellows. 

The  Imperial  German  Government  did  not  renounce  ''the  employ- 
ment of  ruthless  submarine  warfare."  American  ships  continued  to 
be  sunk,  and,  seeing  no  prospect  of  a  change  of  heart  on  behalf  of 
the  Imperial  German  authorities,  the  President  of  the  United  States 
again  addressed  the  Congress  on  February  26,  1917,  and,  after  call- 
ing attention  to  the  situation  as  he  understood  it,  stated: 

Since  it  has  unhappily  proved  impossible  to  safeguard  our 
neutral  rights  by  diplomatic  means  against  the  unwarranted 
infringements  they  are  suffering  at  the  hands  of  Germany,  there 
may  be  no  recourse  but  to  armed  neutrality,  which  we  shall  know 
how  to  maintain  and  for  which  there  is  abundant  American 
precedent.^ 

'  Congressional  Record,  vol.  54,  p.  2550. 

2  Ibid.,  p.  4273. 

On  March  12,  1917,  that  is  to  say,  more  than  a  month  after  the  severing  of 
diplomatic  relations,  Secretary  Lansing  sent  the  following  statement  to  all  the 
foreign  missions  for  their  information: 

In  view  of  the  announcement  of  the  Imperial  German  Government  on 
January  31,   1917,  that  all  ships,  those  of  neutrals  included,  met  within 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    297 

Here  again  there  was  no  recourse  to  war,  although  the  President 
had  taken  a  further  step  in  that  direction.  To  the  unwarranted 
infringements  of  the  German  Government  upon  the  rights  of  the 
American  people  the  United  States  was  to  interpose  an  armed  neu- 
trality. Arms  are  indeed  mentioned,  but  they  were  to  be  used  not 
to  attack  but  to  ward  off  an  attack  which  Germany  might  or  might 
not  make.  The  President  had  spoken  of  interference  with  our  neu- 
tral rights  to  the  injury  of  American  property  and  loss  of  American 
life,  but  the  issue  between  the  two  countries  had  ceased  to  be  one 
affecting  American  property  or  even  American  life.  It  had  become, 
indeed,  a  larger  issue,  and,  unwilling  to  leave  the  impression  that  he 
was  unconscious  of  this,  the  President  thus  concluded  his  address: 

I  have  spoken  of  our  commerce  and  of  the  legitimate  errands 
of  our  people  on  the  seas,  but  you  will  not  be  misled  as  to  my 
main  thought,  the  thought  that  lies  beneath  these  phrases  and 
gives  them  dignity  and  weight.  It  is  not  of  material  interests 
merely  that  we  are  thinking.  It  is,  rather,  of  fundamental 
human  rights,  chief  of  all  the  right  of  life  itself.  I  am  thinking, 
not  only  of  the  rights  of  Americans  to  go  and  come  about  their 
proper  business  by  way  of  the  sea,  but  also  of  something  much 
deeper,  much  more  fundamental  than  that.  I  am  thinking  of 
those  rights  of  humanity  without  which  there  is  no  civilization. 
My  theme  is  of  those  great  principles  of  compassion  and  of 
protection  which  mankind  has  sought  to  throw  about  human  lives, 
the  lives  of  noncombatants,  the  lives  of  men  who  are  peacefully 
at  work  keeping  the  industrial  processes  of  the  world  quick  and 
vital,  the  lives  of  women  and  children  and  of  those  who  supply 
the  labor  which  ministers  to  their  sustenance.  We  are  speaking 
of  no  selfish  material  rights  but  of  rights  which  our  hearts  sup- 
port and  whose  foundation  is  that  righteous  passion  for  justice 
upon  which  all  law,  all  structures  alike  of  family,  of  state,  and 
of  mankind  must  rest,  as  upon  the  ultimate  base  of  our  existence 
and  our  liberty.  I  cannot  imagine  any  man  with  American  prin- 
ciples at  his  heart  hesitating  to  defend  these  things.' 

certain  zones  of  the  high  seas,  would  be  sunk  without  any  precautions  being 
taken  for  the  safety  of  the  persons  on  board,  and  without  the  exercise  of 
visit  and  search,  the  Government  of  the  United  States  has  determined  to 
place  upon  all  American  merchant  vessels  sailing  through  the  barred  areas 
an  armed  guard  for  the  protection  of  the  vessels  and  the  lives  of  the 
persons  on  board.  (Official  documents  published  by  Department  of  State.) 
^  Congressional  Record,  vol.  54,  p.  4273. 


CHAPTER   XVII 
THE    DECLARATION    OF    WAR 

On  the  2d  day  of  April,  1917,  President  Wilson  appeared 
before  the  Congress  of  the  United  States  and,  after  setting  forth  the 
lawless  actions  of  the  Imperial  German  Government  and  the  impossi- 
bility of  protecting  the  lives  and  property  of  his  fellow  countrymen 
engaged  in  pursuits  which  have  always,  "even  in  the  darkest  periods 
of  modern  history,  been  deemed  innocent  and  legitimate,"  advised 
the  Congress  of  the  United  States,  in  which  body  the  power  to  declare 
war  is  vested  by  the  Constitution,  to  declare  the  existence  of  a  state 
of  war  between  the  Imperial  German  Government  and  the  United 
States,  saying: 

With  a  profound  sense  of  the  solemn  and  even  tragical  char- 
acter of  the  step  I  am  taking  and  of  the  grave  responsibilities 
which  it  involves,  but  in  unhesitating  obedience  to  what  I  deem 
my  constitutional  duty,  I  advise  that  the  Congress  declare  the 
recent  course  of  the  Imperial  German  Government  to  be  in  fact 
nothing  less  than  war  against  the  government  and  people  of  the 
United  States;  that  it  formally  accept  the  status  of  belligerent 
which  has  thus  been  thrust  upon  it ;  and  that  it  take  immediate 
steps  not  only  to  put  the  country  in  a  more  thorough  state  of 
defense  but  also  to  exert  all  its  power  and  employ  all  its  resources 
to  bring  the  Government  of  the  German  Empire  to  terms  and 
end  the  war/ 

On  the  6th  day  of  April,  1917,  the  Congress,  after  grave  deliber- 
ation and  with  a  full  sense  of  the  responsibility  which  it  would  thus 
assume,  declared  a  state  of  war  to  exist  between  the  Imperial  Ger- 
man Government  and  the  United  States,  in  the  following  terms : 

Whereas  the  Imperial  German  Government  has  committed 
repeated  acts  of  war  against  the  Government  and  the  people  of 
the  United  States  of  America:    Therefore  be  it 

Resolved  by  the  Seriate  and  House  of  Representatives  of  thp. 
United  States  of  America  in  Congress  assembled,  That  the  state 

*^  Congressional  Record,  vol.  55,  No.  1,  p.  3. 

298 


A  SURVEY  OF  INTERNATIONAL  RELATIONS        299 

of  war  between  the  United  States  and  the  Imperial  German  Gov- 
ernment which  has  thus  been  thrust  upon  the  United  States  is 
hereby  formally  declared ;  and  that  the  President  be,  and  he  is 
hereby,  authorized  and  directed  to  employ  the  entire  naval  and 
military  forces  of  the  United  States  and  the  resources  of  the 
Government  to  carry  on  war  against  the  Imperial  German  Gov- 
ernment ;  and  to  bring  the  conflict  to  a  successful  termination  all 
of  the  resources  of  the  country  are  hereby  pledged  by  the  Con- 
gress of  the  United  States.' 

What  were  the  reasons  which  caused  the  President  of  the  United 
States  to  advise  the  Congress  to  declare  the  existence  of  a  state  of 
war  between  the  Imperial  German  Government  and  the  United 
States ;  what  were  the  reasons  which  caused  the  Congress  to  act  upon 
the  advice  of  the  President  to  declare  the  existence  of  a  state  of  war 
between  the  two  countries;  and  what  are  the  consequences  which  the 
President,  the  Congress,  and  the  people  of  the  United  States  con- 
sider as  likely  to  follow  from  this  state  of  war  and  its  effective  prose- 
cution ?  We  do  not  need  to  speculate  as  to  the  reasons,  for  the  Presi- 
dent himself  has  stated  them,  and  if  he  had  not  they  would  be  suffi- 
ciently in  evidence,  as  the  actions  of  Germany  since  the  first  day  of 
August,  1914,  in  so  far  as  the  United  States  is  concerned,  speak  louder 
than  words;  and  we  do  not  need  to  indulge  in  prophecy  in  order  to 
forecast  the  consequences  of  this  declaration  on  behalf  of  the  United 
States,  for  the  President  himself  has  stated,  in  clear  and  unmistak- 
able terms,  that  the  autocracy  which  made  these  acts  possible  should 
end  with  the  war. 

The  first  part  of  the  President's  address  deals  with  the  specific 
acts  of  the  Imperial  German  Government  as  causes  of  the  war.  The 
second  part  deals  with  the  motives  and  purposes  of  the  United  States 
in  entering  the  war,  for  while  the  acts  of  the  Imperial  German  Gov- 
ernment would  justify  resistance  on  behalf  of  the  United  States,  the 
President  wished  it  clearly  to  be  understood,  and  therefore  he  put 
it  plainly,  that  the  motive  and  purpose  in  entering  the  war  which 
had  been  thrust  upon  the  United  States  were  not  merely  to  secure 
redress  for  the  loss  of  property,  not  even  redress  for  the  loss  of 
human  life,  but  to  secure  the  repudiation  of  the  Prussian  concep- 
tion of  State  and  Government,  which  could  force  a  people  to  commit 
such  acts,  and  to  secure  some  form  of  international  organization  cal- 
culated to  guarantee  peace  among  Nations  through  the  administra- 
tion of  justice. 

'  Congressional  Record,  vol.  55,  No.  4,  p.  183 ;  Public  Resolution  No.  1, 
65th  Cong.,   Ist  sess. 


300        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

As  far  as  the  United  States  is  concerned,  the  cause  of  its  war 
with  the  Imperial  German  Government  is  the  submarine,  for  the  dis- 
putes of  a  serious  nature  and  of  a  kind  calculated  to  produce  war 
between  the  two  Governments  related  to  the  conduct  of  the  sub- 
marine, which,  because  Great  Britain  controlled  the  seas,  was  the  only 
form  of  maritime  warfare  left  to  Germany ;  and  Germany  was  appar- 
ently as  unwilling  to  renounce  maritime  warfare  as  it  was  unwilling 
to  allow  its  surface  fleet  to  put  to  sea  and  to  give  battle  to  the  British 
Navy.  The  United  States  did  not  object  to  the  employment  of  the 
submarine.  It  recognized  it  as  a  vessel  of  war,  possessed  of  all  the 
rights  of  a  vessel  of  war  and  subject  to  all  the  duties  of  a  vessel 
of  Avar.  But  the  United  States  insisted  from  the  beginning  that  the 
submarine  should  conform  its  actions  to  the  rules  of  law  to  which 
vessels  of  war  were  subjected,  and  that,  if  it  could  not  or  would  not 
conform  its  actions  to  such  rules,  it  should  not  be  used ;  for  the  law 
could  not  be  changed  to  suit  the  submarine,  which  should  itself  be 
changed  to  meet  the  law  if  it  could  not,  as  then  constructed,  comply 
with  the  law  as  it  then  stood. 

The  Imperial  German  Government,  on  the  contrary,  insisted  that, 
because  of  its  frailty,  the  submarine  could  not  comply  with  the  laws 
and  customs  of  war  controlling  the  acts  of  surface  vessels,  that  it 
could  not  comply  with  the  formalities  of  visit  and  search,  because, 
to  do  so,  it  would  have  to  comport  itself  as  a  surface  vessel,  and  as 
a  surface  vessel  it  would  endanger  its  existence  if  it  approached 
within  gunshot  of  ordinary  surface  vessels.  The  Imperial  German 
Government  claimed  for  the  submarine  the  right  to  operate  under 
the  surface  to  protect  itself  from  attack,  and,  thus  protected,  to 
attack  any  vessel  approaching  it  because,  under  the  surface,  it  could 
not  distinguish  the  vessel  of  the  enemy  from  the  vessel  of  a  friendly 
Power.  It  claimed  the  right  to  attack  the  vessel  within  range  with- 
out warning  because,  if  it  gave  warning,  it  exposed  itself  to  danger. 
Finally,  it  claimed  the  right  to  torpedo  and  thus  destroy  the  vessel 
without  first  putting  its  passengers  and  crew  in  a  place  of  safety 
because  the  submarine  was  too  small  to  take  them  on  board.  The 
contention  of  the  United  States  was  that  the  rules  of  law  controlling 
the  principal  should  also  control  the  conduct  of  the  agent;  the  con- 
tention of  the  Imperial  German  Government  was  that  the  rules  of 
law  controlling  the  principal  should  be  subordinated  to  the  conveni- 
ence of  the  agent. 

If  matters  had  rested  here  the  question  at  issue  between  the  two 
Governments  would  have  been  academic.    But  matters  did  not  rest 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     301 

here,  because  the  Imperial  German  Government  put  its  conception  of 
submarine  warfare  into  practice,  with  the  result,  as  the  President 
informed  the  Congress  in  his  address  of  the  2d  of  April,  1917,  that 
''Vessels  of  every  kind,  whatever  their  flag,  their  character,  their 
cargo,  their  destination,  their  errand,  have  been  ruthlessly  sent  to 
the  bottom  without  warning  and  without  thought  of  help  or  mercy 
for  those  on  board,  the  vessels  of  friendly  neutrals  along  with  those 
of  belligerents.  Even  hospital  ships  and  ships  carrying  relief  to  the 
sordly  bereaved  and  stricken  people  of  Belgium,  though  the  latter 
were  provided  with  safe  conduct  through  the  proscribed  areas  by 
the  German  Government  itself  and  were  distinguished  by  unmis- 
takable marks  of  identity,  have  been  sunk  with  the  same  reckless 
lack  of  compassion  or  of  principle."  ' 

In  the  report  of  the  Committee  on  Foreign  Affairs  of  the  House 
of  Representatives  accompanying  the  text  of  the  declaration  of  a 
state  of  war  with  the  Imperial  German  Government,  numerous 
instances  are  given  justifying  the  President's  indictment,  and  while 
these  instances  are  but  few  of  the  many,  they  are  given  as  a  sample 
of  the  indiscriminate  submarine  warfare  of  the  Imperial  German 
Government. 

After  a  brief  reference  to  the  diplomatic  correspondence  between 
the  two  Governments,  in  which  Germany  stated  that  instructions  had 
been  given  ' '  to  abstain  from  all  violence  against  neutral  vessels  recog- 
nizable as  such"  and  that  "it  is  very  far  indeed  from  the  intention 
of  the  German  Government  .  .  .  ever  to  destroy  neutral  lives  and 
neutral  property,"  the  official  report  to  which  reference  has  been 
made  continues: 


Nevertheless  the  German  Government  proceeded  to  carry  out 
its  plans  of  submarine  warfare  and  torpedoed  the  British  passen- 
ger steamer  Falaba  on  March  27,  1915,  when  one  American  life 
was  lost,  attacked  the  American  steamer  Gushing  April  28  by 
airship,  and  made  submarine  attacks  upon  the  American  tank 
steamer  GulfligJit  May  1,  the  British  passenger  steamer  Lusitania 
May  7,  when  114  American  lives  were  lost,  and  the  American 
steamer  Nehraskan  on  May  25,  in  all  of  which  over  125  citizens 
of  the  United  States  lost  their  lives,  not  to  mention  hundreds  of 
noncombatants  who  were  lost  and  hundreds  of  Americans  and 
noncombatants  whose  lives  were  put  in  jeopardy. 

The  British  mule  boat  Armenian  was  torpedoed  on  June  28, 
as  a  result  of  which  twenty  Americans  are  reported  missing.^ 

^  Congressional  Record,  vol.  55,  No.  1,  p.  2.  2  Ibid.,  No.  4,  p.  191. 


302        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

After  a  further  reference  to  the  diplomatic  correspondence,  the 
official  report  thus  proceeds: 

Subsequently  the  following  vessels  carrying  American  citi- 
zens were  attacked  by  submarines: 

British  liner  Ordiina  July  9. 

Russian  steamer  Leo  July  9. 

American  steamer  Leelanaiv  July  25. 

British  passenger  liner  Arabic  August  19. 

British  mule  ship  Nicosian  August  19. 

British  steamer  Hesperian  September  4. 

In  these  attacks  twenty -three  Americans  lost  their  lives,  not 
to  mention  the  large  number  whose  lives  were  placed  in  jeopardy.' 

After  another  reference  to  diplomatic  correspondence,  citing  Ger- 
man promises,  the  official  report  goes  on  to  say: 

Following  this  accumulative  series  of  assurances,  however, 
there  seems  to  have  been  no  abatement  in  the  rigor  of  submarine 
warfare,  for  attacks  were  made  in  the  Mediterranean  upon  the 
American  steamer  Communipaw  on  December  3,  the  American 
steamer  Petrolite  December  5,  the  Japanese  liner  Yasaka  Maru 
December  21,  and  the  passenger  liner  Persia  December  30.  In 
the  sinking  of  The  Persia  out  of  a  total  of  some  500  passengers 
and  crew  only  165  were  saved.  Among  those  lost  was  an  Ameri- 
can consul  traveling  to  his  post.' 

After  again  referring  to  the  correspondence  between  the  two 
countries,  continuing  the  assurance  of  the  German  Government,  in 
the  language  of  the  report,  "that  neutral  and  enemy  merchant  vessels, 
passenger  as  well  as  freight  ships,  should  not  be  destroyed  except 
upon  the  passengers  and  crew  being  accorded  safety,"  the  official 
report  thus  chronicles  the  loss  of  life  and  property  during  the  year 
1916: 

On  March  1,  1916,  the  unarmed  French  passenger  steamer 
Patria,  carrying  a  number  of  American  citizens,  was  attacked 
without  warning.  On  March  9  the  Norwegian  bark  Sili^is,  riding 
at  anchor  in  Havre  Rhodes,  was  torpedoed  by  an  unseen  sub- 
marine, and  one  of  the  seven  Americans  on  board  was  injured. 
On  March  16  the  Dutch  passenger  steamer  Tuhantia  was  sunk 
in  the  North  Sea  by  a  torpedo.  On  March  16  the  British  steamer 
Berwindale  was  torpedoed  without  warning  off  Bantry  Island 
with  four  Americans  on  board.     On  March  24  the  British  un- 

*  Congressional  Record,  vol.  55,  No.  4,  p.  192. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    303 

armed  steamer  Englishman  was,  after  a  chase,  torpedoed  and 
sunk  by  the  submarine  U-19,  as  a  result  of  which  one  American 
on  board  perished.  On  March  24  the  unarmed  French  cross- 
channel  steamer  Sussex  was  torpedoed  without  warning,  several 
of  the  twenty-four  American  passengers  being  injured.  On 
March  27  the  unarmed  British  liner  Manchester  Engineer  was 
sunk  by  an  explosion  without  prior  warning,  with  Americans  on 
board,  and  on  March  28  the  British  steamer  Eagle  Point,  carry- 
ing a  Hotchkiss  gun,  which  she  did  not  use,  was  chased,  over- 
taken, and  sunk  by  a  torpedo  after  the  persons  on  board  had 
taken  to  the  boats.^ 

And  after  a  final  reference  to  the  correspondence  between  the  two 
Governments,  resulting  in  the  assurance  of  May  4,  1916,  that  new 
orders  had  been  issued  to  the  German  naval  forces  "in  accordance 
with  the  general  principles  of  visit  and  search  and  the  destruction 
of  merchant  vessels  recognized  by  international  law,"  and  quoting 
the  withdrawal  of  this  assurance  contained  in  the  German  note  of 
January  31,  1917,  the  report  continues  and  concludes  as  follows  this 
phase  of  the  question: 

On  February  3  [1917]  one  American  ship  was  sunk,  and 
since  that  date  six  American  ships  flying  the  American  flag  have 
been  torpedoed,  with  a  loss  of  about  thirteen  American  citizens. 
In  addition,  fifty  or  more  foreign  vessels  of  both  belligerent  and 
neutral  nationality  with  Americans  on  board  have  been  torpedoed, 
in  most  cases  without  warning,  with  a  consequent  loss  of  several 
American  citizens.' 

The  President's  statement  thus  appears  to  be  borne  out  by 
the  facts. 

But  there  is  a  further  charge  made  by  the  President  of  even  a 
more  serious  character,  for  in  the  address  of  the  2d  of  April  he 
states  that  ''hospital  ships  and  ships  carrying  relief  to  the  sorely 
bereaved  and  stricken  people  of  Belgium"  had  been  destroyed  by 
German  submarines,  although  these  vessels  were  supposed  to  be  pro- 
tected by  the  promise  of  the  Imperial  German  Government,  evidenced 
by  safe  conducts.  On  this  point  the  ofiicial  report  previously  quoted 
says: 

When  the  Commission  for  Relief  in  Belgium  began  its  work 
in  October,  1914,  it  received  from  the  German  authorities, 
through  the  various  Governments  concerned,  definite  written 
assurances  that  ships  engaged  in  carrying  cargoes  for  the  relief 

^  Congressional  Record,  vol.  55,  No.  4,  p.  192. 


304        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  the  civil  population  of  Belgium  and  northern  France  should 
be  immune  from  attack.  In  order  that  there  may  be  no  room 
for  attacks  upon  these  ships  through  misunderstanding,  each 
ship  is  given  a  safe  conduct  by  the  German  diplomatic  represen- 
tative in  the  country  from  which  it  sails,  and,  in  addition,  bears 
conspicuously  upon  its  sides  markings  which  have  been  agreed 
upon  with  the  German  authorities;  furthermore,  similar  mark- 
ings are  painted  upon  the  decks  of  the  ships  in  order  that  they 
may  be  readily  recognizable  by  aeroplanes. 

Upon  the  rupture  of  relations  with  Germany  the  commission 
was  definitely  assured  by  the  German  Government  that  its  ships 
would  be  immune  from  attack  by  following  certain  prescribed 
courses  and  conforming  to  the  arrangements  previously  made. 

Despite  these  solemn  assurances  there  have  been  several  un- 
warranted attacks  upon  ships  under  charter  to  the  commission. 

On  March  7  or  8  the  Norwegian  ship  Storstad,  carrying 
10,000  tons  of  corn  from  Buenos  Aires  to  Rotterdam  for  the 
commission,  was  sunk  in  broad  daylight  by  a  German  submarine 
despite  the  conspicuous  markings  of  the  commission,  which  the 
submarine  could  not  help  observing.  The  Storstad  was  repeatedly 
shelled  without  warning  and  finally  torpedoed. 

On  March  19  the  steamships  Tunisie  and  Haelen,  under  char- 
ter to  the  commission,  proceeded  to  the  United  States  under  safe 
conducts  and  guarantees  from  the  German  minister  at  The  Hague 
and  bearing  conspicuous  marking  of  the  commission,  were 
attacked  without  warning  by  a  German  submarine  outside  the 
danger  zone  (56°  15'  north,  5°  32'  east).  The  ships  were  not 
sunk,  but  on  the  Haelen  seven  men  were  killed,  including  the 
first  and  third  officers;  a  port  boat  was  sunk;  a  hole  was  made 
in  the  port  bunker  above  the  water  line ;  and  the  ships  sustained 
sundry  damages  to  decks  and  engines.^ 

In  a  later  portion  of  the  President's  address  he  calls  attention  to 
the  difficulty  of  maintaining  peace  with  the  Imperial  German  Govern- 
ment and  enumerates  a  series  of  transactions  within  American  juris- 
diction comparable  to  the  conduct  of  the  submarine  warfare  upon  the 
high  seas.  They  are  apparently  not  mentioned  by  the  President 
as  in  themselves  the  cause  of  war  but  as  a  matter  of  aggravation. 
Thus  he  says : 

One  of  the  things  that  has  served  to  convince  us  that  the 
Prussian  autocracy  was  not  and  could  never  be  our  friend  is  that 
from  the  very  outset  of  the  present  war  it  has  filled  our  unsus- 
pecting communities  and  even  our  offices  of  government  with 
spies  and  set  criminal  intrigues  everywhere  afoot  against  our 
national  unity  of  counsel,  our  peace  within  and  without,  our 

'■  Congressional  Record,  vol.  55,  No.  4,  p.  193. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    305 

industries,  and  our  commerce.  Indeed,  it  is  now  evident  that  its 
spies  were  here  even  before  the  war  began;  and  it  is  unhappily 
not  a  matter  of  conjecture  but  a  fact  proved  in  our  courts  of 
justice  that  the  intrigues  which  have  more  than  once  come  peril- 
ously near  to  disturbing  the  peace  and  dislocating  the  industries 
of  the  country  have  been  carried  on  at  the  instigation,  with  the 
support,  and  even  under  the  personal  direction  of  official  agents 
of  the  Imperial  Government  accredited  to  the  Government  of 
the  United  States.  Even  in  checking  these  things  and  trying  to 
extirpate  them  we  have  sought  to  put  the  most  generous  inter- 
pretation possible  upon  them  because  we  knew  that  their  source 
lay,  not  in  any  hostile  feeling  or  purpose  of  the  German  people 
toward  us  (who  were,  no  doubt,  as  ignorant  of  them  as  we  our- 
selves were),  but  only  in  the  selfish  designs  of  a  Government  that 
did  what  it  pleased  and  told  its  people  nothing.  But  they  have 
played  their  part  in  serving  to  convince  us  at  last  that  that  Gov- 
ernment entertains  no  real  friendship  for  us  and  means  to  act 
against  our  peace  and  security  at  its  convenience.  That  it  means 
to  stir  up  enemies  against  us  at  our  very  doors  the  intercepted 
note  to  the  German  Minister  at  Mexico  City  is  eloquent  evidence.^ 

In  the  official  report  of  the  Committee  on  Foreign  Affairs  of  the 
House  of  Representatives,  there  is  an  elaborate  but  far  from  com- 
plete enumeration  of  the  acts  of  German  officials  and  of  German 
sympathizers  in  the  domestic  affairs  of  the  United  States.  The  few 
instances  actually  collected,  which  are  to  be  taken  as  a  sample  of  the 
many  which  are  not  chronicled,  are  twenty-one  in  number  and  are 
thus  stated  in  the  report  in  brief  and  summary  form: 

1.  By  direct  instructions  received  from  the  foreign  office  in 
Berlin  the  German  Embassy  in  this  country  furnished  funds  and 
issued  orders  to  the  Indian  independence  committee  of  the  Indian 
Nationalist  Party  in  the  United  States.  These  instructions  were 
usually  conveyed  to  the  committee  by  the  military  information 
bureau  in  New  York  (Von  Igel)  or  by  the  German  consulates 
in  New  York  and  San  Francisco. 

Dr.  Chakrabarty,  recently  arrested  in  New  York  City,  re- 
ceived, all  in  all,  according  to  his  own  admission,  some  $60,000 
from  Von  Igel.  He  claims  that  the  greater  portion  of  this  money 
was  used  for  defraying  the  expenses  of  the  Indian  revolutionary 
propaganda  in  this  country,  and,  as  he  says,  for  educational  pur- 
poses. While  this  is  in  itself  true,  it  is  not  all  that  was  done 
by  the  revolutionists.  They  have  sent  representatives  to  the 
Far  East  to  stir  up  trouble  in  India,  and  they  have  attempted 
to  ship  arms  and  ammunition  to  India.  These  expeditions  have 
failed.    The  German  Embassy  also  employed  Ernest  T.  Euphrat 

*  Congressional  Record,  vol.  55,  No.  1,  p.  4. 


306        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

to  carry  instructions  and  information  between  Berlin  and  Wash- 
ington under  an  American  passport. 

2.  Officers  of  interned  German  warships  have  violated  their 
word  of  honor  and  escaped.  In  one  instance  the  German  consul 
at  Richmond  furnished  the  money  to  purchase  a  boat  to  enable 
six  warrant  officers  of  the  steamer  Kronprinz  Willielm  to  escape 
after  breaking  their  parole. 

3.  Under  the  supervision  of  Captain  von  Papen  and  Wolf 
von  Igel,  Hans  von  Wedell  and,  subsequently,  Carl  Ruroede 
maintained  a  regular  office  for  the  procurement  of  fraudulent 
passports  for  German  reservists.  These  operations  were  directed 
and  financed  in  part  by  Captain  von  Papen  and  Wolf  von  Igel. 
Indictments  were  returned,  Carl  Ruroede  sentenced  to  the  peni- 
tentiary, and  a  number  of  German  officers  fined.  Von  Wedell 
escaped  and  has  apparently  been  drowned  at  sea.  Von  Wedell 's 
operations  were  also  known  to  high  officials  in  Germany.  When 
Von  Wedell  became  suspicious  that  forgeries  committed  by  him 
on  a  passport  application  had  become  known,  he  conferred  with 
Captain  von  Papen  and  obtained  money  from  him  wherewith  to 
make  his  escape. 

4.  James  J.  F.  Archibald,  under  cover  of  an  American  pass- 
port and  in  the  pay  of  the  German  Government  through  Ambas 
sador  Bernstorff,  carried  dispatches  for  Ambassador  Dumba  and 
otherwise  engaged  in  unneutral  activities. 

5.  Albert  Sanders,  Charles  Wunnonberg,  and  others,  Ger- 
man agents  in  this  country,  were  engaged,  among  other  activi- 
ties, in  sending  spies  to  England,  equipped  with  American  pass- 
ports, for  the  purpose  of  securing  military  information.  Several 
such  men  have  been  sent.  Sanders  and  Wunnonberg  have  plead 
guilty  to  indictments  brought  against  them  in  New  York  City, 
as  has  George  Voux  Bacon,  one  of  the  men  sent  abroad  by  them. 

6.  American  passports  have  been  counterfeited  and  counter- 
feits found  on  German  agents.  Baron  von  Cupenberg,  a  Ger- 
man agent,  when  arrested  abroad,  bore  a  counterfeit  of  an  Ameri- 
can passport  issued  to  Gustav  C.  Roeder;  Irving  Guy  Ries 
received  an  American  passport,  went  to  Germany,  where  the 
police  retained  his  passports  for  twenty-four  hours.  Later  a 
German  spy  named  Carl  Paul  Julius  Hensel  was  arrested  in 
London  with  a  counterfeit  of  the  Ries  passport  in  his  possession. 

7.  Prominent  officials  of  the  Hamburg-American  Line,  who, 
under  the  direction  of  Captain  Boy-Ed,  endeavored  to  provide 
German  warships  at  sea  with  coal  and  other  supplies  in  viola- 
tion of  the  statutes  of  the  United  States,  have  been  tried  and 
convicted  and  sentenced  to  the  penitentiary.  Some  twelve  or 
more  vessels  were  involved  in  this  plan. 

8.  Under  the  direction  of  Captain  Boy-Ed  and  the  German 
consulate  at  San  Francisco,  and  in  violation  of  our  law,  the 
steamships  Sacramento  and  Mazatlan  carried  supplies  from  San 
Francisco  to  German  war  vessels.     The   Olse7i   and  Mahoney, 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    307 

which  were  engaged  in  a  similar  enterprise,  were  detained.  The 
money  for  these  ventures  was  furnished  by  Captain  Boy-Ed. 
Indictments  have  been  returned  in  connection  with  these  matters 
against  a  large  number  of  persons. 

9.  Werner  Horn,  a  lieutenant  in  the  German  reserve,  was 
furnished  funds  by  Captain  Franz  von  Papen  and  sent,  with 
dynamite,  under  orders  to  blow  up  the  International  Bridge  at 
Vanceboro,  Me.  He  was  partially  successful.  He  is  now  under 
indictment  for  the  unlawful  transportation  of  dynamite  on  pas- 
senger trains  and  is  in  jail  awaiting  trial  following  the  dismissal 
of  his  appeal  by  the  Supreme  Court. 

10.  Captain  von  Papen  furnished  funds  to  Albert  Kalt- 
schmidt,  of  Detroit,  who  is  involved  in  a  plot  to  blow  up  a 
factory  at  Walkerville,  Canada,  and  the  armory  at  Windsor, 
Canada. 

11.  Robert  Pay,  Walter  Scholtz,  and  Paul  Daeche  have  been 
convicted  and  sentenced  to  the  penitentiary  and  three  others  are 
under  indictment  for  conspiracy  to  prepare  bombs  and  attach 
them  to  allied  ships  leaving  New  York  Harbor.  Fay,  who  was 
the  principal  in  this  scheme,  was  a  German  soldier.  He  testi- 
fied that  he  received  finances  from  a  German  secret  agent  in 
Brussels,  and  told  Von  Papen  of  his  plans,  who  advised  him 
that  his  device  was  not  practicable,  but  that  he  should  go  ahead 
with  it,  and  if  he  could  make  it  work  he  would  consider  it. 

12.  Under  the  direction  of  Captain  von  Papen  and  Wolf 
von  Igel,  Dr.  Walter  T.  Scheele,  Captain  von  Kleist,  Captain 
Wolpert,  of  the  Atlas  Steamship  Company,  and  Captain  Rode, 
of  the  Hamburg- American  Line,  manufactured  incendiary  bombs 
and  placed  them  on  board  allied  vessels.  The  shells  in  which 
the  chemicals  were  placed  were  made  on  board  the  steamship 
Friedrich  der  Grosse.  Scheele  was  furnished  $1,000  by  Von  Igel 
wherewith  to  become  a  fugitive  from  justice. 

13.  Captain  Franz  Rintelen,  a  reserve  officer  in  the  Ger- 
man Navy,  came  to  this  country  secretly  for  the  purpose  of 
preventing  the  exportation  of  munitions  of  war  to  the  allies 
and  of  getting  to  Germany  needed  supplies.  He  organized  and 
financed  Labor's  National  Peace  Council  in  an  effort  to  bring 
about  an  embargo  on  the  shipment  of  munitions  of  war,  tried 
to  bring  about  strikes,  etc. 

14.  Consul  General  Bopp,  at  San  Francisco,  Vice  Consul 
General  von  Schaick,  Baron  George  Wilhelm  von  Brincken  (an 
employee  of  the  consulate),  Charles  C.  Crowley,  and  Mrs.  Mar- 
garet W.  Cornell  (secret  agents  of  the  German  consulate  at 
San  Francisco)  have  been  convicted  of  conspiracy  to  send  agents 
into  Canada  to  blow  up  railroad  tunnels  and  bridges,  and  to 
wreck  vessels  sailing  from  Pacific  coast  ports  with  war  material 
for  Russia  and  Japan, 

15.  Paul  Koenig,  head  of  the  secret-service  work  of  the 
Hamburg-American  Line,  by  direction  of  his  superior  officers, 


308        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

largely  augmented  his  organization  and  under  the  direction  of 
Von  Papen,  Boy-Ed,  and  Albert  carried  on  secret  work  for  the 
German  Government.  He  secured  and  sent  spies  to  Canada  to 
gather  information  concerning  the  Welland  Canal,  the  move- 
ments of  Canadian  troops  to  England,  bribed  an  employee  of  a 
bank  for  information  concerning  shipments  to  the  allies,  sent 
spies  to  Europe  on  American  passports  to  secure  military  infor- 
mation, and  was  involved  with  Captain  von  Papen  in  plans  to 
place  bombs  on  ships  of  the  allies  leaving  New  York  Harbor, 
etc.  Von  Papen,  Boy-Ed,  and  Albert  had  frequent  conferences 
with  Koenig  in  his  office,  at  theirs,  and  at  outside  places.  Koenig 
and  certain  of  his  associates  are  under  indictment. 

16.  Captain  von  Papen,  Captain  Hans  Tauscher,  Wolf 
von  Igel,  and  a  number  of  German  reservists  organized  an  expe- 
dition to  go  into  Canada,  destroy  the  Welland  Canal,  and  en- 
deavor to  terrorize  Canadians  in  order  to  delay  the  sending  of 
troops  from  Canada  to  Europe.  Indictments  have  been  returned 
against  these  persons.  Wolf  von  Igel  furnished  Fritzen,  one 
of  the  conspirators  in  this  case,  money  on  which  to  flee  from 
New  York  City.    Fritzen  is  now  in  jail  in  New  York  City. 

17.  With  money  furnished  by  official  German  representa- 
tives in  this  country,  a  cargo  of  arms  and  ammunition  was  pur- 
chased and  shipped  on  board  the  schooner  Annie  Larsen.  Through 
the  activities  of  German  official  representatives  in  this  country 
and  other  Germans  a  number  of  Indians  were  procured  to  form 
an  expedition  to  go  on  the  steamship  Maverick,  meet  the  Annie 
Larsen,  take  over  her  cargo,  and  endeavor  to  bring  about  a  revo- 
lution in  India.  This  plan  involved  the  sending  of  a  German 
officer  to  drill  Indian  recruits  and  the  entire  plan  was  managed 
and  directed  by  Captain  von  Papen,  Captain  Hanz  Tauscher, 
and  other  official  German  representatives  in  this  country. 

18.  Gustav  Stahl,  a  German  reservist,  made  an  affidavit  which 
he  admitted  was  false,  regarding  the  armament  of  The  Lusitania, 
which  affidavit  was  forwarded  to  the  State  Department  by 
Ambassador  Bernstorff.  He  pleaded  guilty  to  an  indictment 
charging  perjury,  and  was  sentenced  to  the  penitentiary. 
Koenig,  herein  mentioned,  was  active  in  securing  this  affidavit. 

19.  The  German  Embassy  organized,  directed,  and  financed 
the  Hans  Libeau  Employment  Agency,  through  which  extended 
efforts  were  made  to  induce  employees  of  manufacturers  engaged 
in  supplying  various  kinds  of  material  to  the  allies  to  give  up 
their  positions  in  an  effort  to  interfere  with  the  output  of  such 
manufacturers.  Von  Papen  indorsed  this  organization  as  a  mili- 
tary measure,  and  it  was  hoped  through  its  propaganda  to  cripple 
munition  factories. 

20.  The  German  Government  has  assisted  financially  a  num- 
ber of  newspapers  in  this  country  in  return  for  pro-German 
propaganda. 

21.  Many  facts  have  been  secured  indicating  that  Germans 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      309 

have  aided  and  encouraged  financially  and  otherwise  the  activi- 
ties of  one  or  the  other  factions  in  Mexico,  the  purpose  being  to 
keep  the  United  States  occupied  along  its  borders  and  to  pre- 
vent the  exportation  of  munitions  of  war  to  the  allies;  see,  in 
this  connection,  the  activities  of  Rintelen,  Stallforth,  Kopf,  the 
German  consul  at  Chihuahua,  Krum-Hellen,  Felix  Somerfeld 
(Villa's  representative  at  New  York),  Carl  Heynen,  Gustav 
Steinberg,  and  many  others.^ 

It  will  be  observed  that  these  interferences  with  the  domestic 
economy  of  the  United  States  were  at  a  time  when  this  country  was 
neutral,  when  the  Imperial  German  Secretary  of  State  for  Foreign 
Affairs  abounded  in  expressions  of  friendship  and  consideration,  and 
when  the  Imperial  German  Ambassador  enjoyed  the  hospitality  of  the 
country. 

It  is  hard  to  believe  that  these  things  are  so.  But  they  are  not  all. 
On  the  1st  of  March,  1917  (after  the  President's  address  of  February 
26th  and  before  his  address  to  the  Congress  on  the  2d  of  April  the 
American  people  were  astounded,  to  speak  only  of  our  own  country, 
by  the  publication,  with  Secretary  of  State  Lansing's  assurance  as 
to  its  genuineness,^  of  an  instruction  of  the  Imperial  German  Sec- 
retary of  State,  Dr.  Zimmermann,  to  the  Imperial  German  Ambassa- 
dor in  Washington,  Count  von  Bernstorff,  directing  him  to  transmit 
the  text  of  the  message  which  he  had  received  to  the  German  Minister 
in  Mexico.     The  text  of  this  note,  which  is  so  extraordinary  as  to 

^  Congressional  Record,  vol.  55,  No.  4,  pp.  192-193. 

2  In  response  to  a  resolution  of  the  Senate,  Secretary  Lansing  on  March  1, 
1917,  informed  the  President,  who  transmitted  the  statement  to  the  Senate, 
that  "  the  Government  is  in  possession  of  evidence  which  establishes  the  fact 
that  the  note  referred  to  is  authentic,  and  that  it  is  in  possession  of  the 
Government  of  the  United  States."  Any  remaining  doubt  as  to  the  authen- 
ticity of  the  note  was  removed  by  the  following  statement  of  Dr.  Zimmermann 
on  March  29,  1917,  in  reply  to  a  criticism  directed  against  him  by  Hugo  Haasc, 
leader  of  the  Socialist  minority  in  the   Reichstag: 

I  wrote  no  letter  to  General  Carranza.  I  was  not  so  naive.  I  merely 
addressed,  by  a  route  that  appeared  to  me  to  be  a  safe  one,  instructions 
to  our  representative  in  Mexico.  It  is  being  investigated  how  these 
instructions  fell  into  the  hands  of  the  American  authorities.  I  instructed 
the  Minister  to  Mexico,  in  the  event  of  war  with  the  United  States,  to 
propose  a  German  alliance  to  Mexico,  and  simultaneously  to  suggest  that 
Japan  join  the  alliance.  I  declared  expressly  that,  despite  the  submarine 
war,  we  hoped  that  America  would  maintain  neutrality.    .     .     . 

When  1  thought  of  this  alliance  with  Mexico  and  Japan  I  allowed 
myself  to  be  guided  by  the  consideration  that  our  brave  troops  already 
have  to  fight  against  a  superior  force  of  enemies,  and  my  duty  is,  as  far 
as  possible,  to  keep  further  enemies  away  from  them.  .  .  .  Thus,  I  con- 
sidered it  a  patriotic  duty  to  release  those  instructions,  and  I  hold  to  the 
standpoint  that  I  acted  rightly.  (Renter  dispatch  from  Amsterdam,  Neio 
York  Times  "Current  History,"  May,   1917,  pp.  2-36-237.) 


310        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

require  no  commentary,  and  may  become  as  famous  in  the  annals  of 
diplomacy  as  the  telegram  of  Ems,  reads  as  follows: 

Berlin,  January  19,  1917. 

On  the  1st  of  February  we  intend  to  begin  submarine  war- 
fare unrestricted.  In  spite  of  this  it  is  our  intention  to  endeavor 
to  keep  neutral  the  United  States  of  America. 

If  this  attempt  is  not  successful,  we  propose  an  alliance  on 
the  following  basis  with  Mexico :  That  we  shall  make  war  together 
and  together  make  peace.  We  shall  give  general  financial  sup- 
port, and  it  is  understood  that  Mexico  is  to  reconquer  the  lost 
territory  in  New  Mexico,  Texas,  and  Arizona.  The  details  are 
left  to  you  for  settlement. 

You  are  instructed  to  inform  the  President  of  Mexico  of  the 
above  in  the  greatest  confidence  as  soon  as  it  is  certain  there  will 
be  an  outbreak  of  war  with  the  United  States,  and  suggest  that 
the  President  of  Mexico  on  his  own  initiative  should  communi- 
cate with  Japan  suggesting  adherence  at  once  to  this  plan;  at 
the  same  time  offer  to  mediate  between  Germany  and  Japan. 

Please  call  to  the  attention  of  the  President  of  Mexico  that 
the  employment  of  ruthless  submarine  warfare  now  promises 
to  compel  England  to  make  peace  in  a  few  months. 

(Signed)       Zimmermann.^ 

It  was  therefore  under  the  eyes  of  Congress,  as  it  was  in  the 
mind  of  the  President  and  in  the  heart  of  the  American  people. 
Without  it  there  were  causes  of  war ;  with  it  there  was  slight  chance 
that  war  could  be  avoided.  It  is  doubtful  whether  it  would  have 
produced  war  if  there  had  not  been  other  and  impelling  reasons  for 
the  resort  to  arms.  It  is  doubtful  if  it  can  properly  be  included 
among  the  causes  of  the  war.  Certainly  it  was  not  a  distinct  cause ; 
it  was  the  culmination  of  a  series  of  unfriendly  acts,  and  it 
showed  the  spirit  and  purpose  with  which  those  acts  had  been  com- 
mitted. It  was  rather  a  matter  of  aggravation,  throwing  fuel  on 
the  flames,  than  creating  of  itself  a  conflagration. 

'  Congressional  Record,  vol.  55,  No.  4,  p.  194. 


CHAPTER   XVIII 

WHY    NOT    ARBITRATION? 

Section  1.    The  Origin  and  Extent  of  the  Modern  Practice  of 

Arbitration 

It  would  be  fair  to  ask  why  the  United  States  did  not  arbitrate 
its  difficulties  with  Germany,  and  although  this  question  has  not  been 
raised  or  put  in  such  a  way  as  to  become  an  issue  between  the  two 
countries,  it  seems  advisable  to  consider  the  attitude  of  Prussia  and 
of  the  Imperial  German  Government  to  arbitration  before  the  outbreak 
of  the  present  war ;  for  if  it  should  appear  that  the  Imperial  Govern- 
ment was  constantly  and  consistently  opposed  to  arbitration,  the 
proposal  of  arbitration  made  during  the  war  would  naturally  be 
looked  upon  and  considered  from  a  different  standpoint  than  if  the 
attitude  of  the  Imperial  Government  before  the  war  had  been  favor- 
able to  this  method  of  settling  international  disputes.  Therefore,  the 
question  is  material  to  the  matter  in  hand  and  will  be  considered  at 
some  length. 

While  it  would  be  too  great  a  digression  to  stop  to  inquire  why 
arbitration,  which  had  disappeared  from  the  memory  of  Nations,  if 
we  are  to  judge  by  their  practice,  was  adopted  by  the  English- 
speaking  peoples  in  the  midst  of  a  world  at  war,  it  is  nevertheless 
within  the  scope  of  this  narrative  to  say  in  passing  that  the  then 
Prime  Minister  of  Great  Britain,  the  younger  Pitt,  whose  mind  was 
open  to  suggestion,  had  had  his  attention  drawn  to  arbitration,^  and 

'  William  Pulteney  wrote  to  Pitt  on  September  14,  1786,  "  in  terms  that," 
as  Mr.  Rose  properly  says,  "  deserve  to  be  remembered."     Thus : 

It  is  to  be  considered  whether  this  is  not  a  good  opportunity  to  ingraft 
upon  this  treaty  some  arrangement  that  may  effectually  tend  to  prevent 
future  wars,  at  least  for  a  considerable  time.  Why  may  not  two  nations 
adopt,  what  individuals  often  adopt  who  have  dealings  that  may  lead  to 
disputes,  the  measure  of  agreeing  beforehand  that  in  case  any  differences 
shall  happen  which  they  cannot  settle  amicably,  the  question  shall  be  referred 
to  arbitration?  The  matter  in  dispute  is  seldom  of  much  real  consequence, 
but  the  point  of  honour  prevents  either  party  from  yielding,  but  if  it  is 
decided  by  third  parties,  each  may  be  contented.  The  arbitrators  should 
not  be  sovereign  princes;  but  might  not  each  nation  name  three  judges, 
either  of  their  own  courts  of  law,  or  of  any  other  country,  out  of  whom 
the  opposite  nation  should  choose  one,  and  these  two  hear  the  question  and 

311 


312        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

had,  some  eight  years  before  the  treaty  with  the  United  States,  pro- 
posed the  limitation  of  armament  to  his  powerful  neighbor  across 
the  Channel ;  ^  that  Jay  had  mastered  the  immortal  treatise  of  Grotius 
on  the  law  of  Nations  before  he  began  to  read  law,  that  on  graduating 
from  Kings  College  (now  Columbia  University)  he  delivered  an 
address  on  the  blessings  of  peace;  that  as  Secretary  of  State  for 
Foreign  Affairs  he  had,  in  1785,  proposed  to  the  Congress  of  the 
Confederation  the  settlement  of  the  boundary  disputes  with  the 
mother  country  by  a  mixed  commission,  that  as  Acting 
Secretary  of  State  in  Washington's  cabinet,  before  the  return 
of  Jefferson  from  France  to  assume  the  Secretaryship  of 
State,  he  again  proposed  the  arbitral  settlement  of  the  same 
disputes  with  Great  Britain,  and  that  Washington  sent  Jay's 
original  proposal  and  report  to  the  First  Congress  under  the  Con- 
stitution, with  a  statement  that  ''it  is  desirable  that  all  questions 
between  this  and  any  other  nation  be  speedily  and  amicably  settled, ' ' 
It  should  be  said,  in  this  connection,  that  Lord  Liverpool  was  at  this 
time  Chancellor  of  the  Duchy  of  Lancaster  in  Pitt's  cabinet,  that  he 
was  one  of  his  familiars  and  had  great  influence  with  him,  and  that 
he  was  a  professed  partisan  of  arbitration.  It  was  natural,  there- 
fore, that  Pitt's  ministry  should  agree  to  Jay's  proposal  to  arbitrate 
the  outstanding  differences  between  the  two  countries,  and  that  Great 
Britain  and  the  United  States  should  conclude  at  a  later  date  the 
first  treaty  of  disarmament  of  modern  times,^  when  the  first  Lord 
Liverpool's  son  was  Prime  Minister. 

either  determine  it  or  name  an  umpire — the  whole  proceedings  to  be  in 
writing?  This  would  occasion  the  matter  to  be  better  discussed  than  is  com- 
monly done,  and  would  give  time  for  the  parties  to  cool  and  most  probably 
reconcile  them  to  the  decision,  whatever  it  might  be. 

It  has  frequently  occurred  to  my  mind  that,  if  France  and  England 
understood  each  other,  the  world  might  be  kept  in  peace  from  one  end  of 
the  globe  to  the  other.  And  why  may  they  not  understand  each  other? 
I  allow  that  France  is  the  most  intriguing  nation  upon  earth;  that  they  are 
restless  and  faithless;  but  is  it  impossible  to  show  them  that  every  object 
of  their  intrigue  may  be  better  assured  by  good  faith  and  a  proper  intelli- 
gence with  us,  and  might  we  not  arrange  everything  together  now  so  as 
completely  to  satisfy  both?      (Pitt  MSS.,  p.   169.) 

Quoted  from  J.  Holland  Rose,  William  Pitt  and  National  Revival  (London, 
1911),    p.    340. 

1  On  this  point  Mr.  Rose  says :  "  Pitt,  we  may  note,  had  sought  to  take  a 
first  step  towards  the  limitation  of  armaments,  by  suggesting  that  the  two 
Powers  should  lessen  their  squadrons  in  the  East  Indies;  but  to  this  Vergennes, 
on  1st  April,  1786,  refused  his  assent."      (Rose,  ibid.,  pp.  340-341.) 

2  The  treaty  referred  to  is  the  so-called  Rush-Bagot  agreement,  concluded 
just  a  century  ago  (April  28-29,  1817),  and  whose  terms  have  been  faithfully 
kept,  limiting  the  armament  to  be  kept  upon  the  Great  Lakes.  For  the  text  of 
this  very  important  and,  we  may  yet  hope,  epoch-making  document  see  Malloy, 
Treaties,  Conventions,  etc.,  between  the  U.  S.  and  Other  Powers,  p.  628. 

For  the  origin,  nature,  and  history  of  the  Rush-Bagot  agreement  see  ex-Secre- 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      313 

Without  prolonging  a  digression  which  may  perhaps  be  considered 
foreign  to  the  present  purpose,  it  is  advisable  to  mention  in  passing 
that  the  treaty  of  1794  between  Great  Britain  and  the  United  States, 
to  which  reference  has  been  made,  negotiated  by  John  Jay,  then 
Chief  Justice  of  the  United  States  but  on  special  mission  to  Great 
Britain,  and  which  is  properly  called  the  Jay  Treaty,  provided  in 
Articles  5,  6,  and  7  for  a  submission  to  mixed  commissions  of  the 
outstanding  difficulties  between  Great  Britain  and  the  United  States; 
that  the  successful  operation  of  the  commission  formed  under  Article 
7  of  this  treaty  convinced  the  two  countries,  and  has  convinced  all 
other  countries  open  to  conviction,  of  the  efficacy  of  arbitration  as  a 
method  of  settling  not  merely  legal  but  equitable  disputes  between 
Nations;  that  from  the  meeting  of  this  commission  in  1798  Great 
Britain  has  arbitrated  98  disputes  with  foreign  Nations;  that  the 
United  States  since  the  same  date  has  arbitrated  76  disputes  with 
foreign  Nations;  that,  of  the  arbitrations  of  these  two  countries,  23 
were  between  Great  Britain  and  the  United  States;  that,  in  the 
period  from  1798  to  1904  there  have  been  241  instances  of  arbitra- 
tion between  all  Nations ;  and  that  two  Nations,  namely.  Great  Britain 
and  the  United  States,  have  been  parties  to  more  than  two-thirds 
of  them.  If  it  be  borne  in  mind  that  treaties  of  arbitration  often 
submit  categories  of  disputes  embracing  many  cases  (as  in  the  case 
of  the  special  treaty  of  arbitration  between  Mexico  and  the  United 
States  of  1868),^  it  is  seen  that  the  mere  enumeration  of  the  treaties 
gives  no  adequate  idea  of  the  number  of  individual  cases  actually 
decided  under  the  treaties." 

To  the  contention,  in  the  nature  of  a  criticism,  that  nations  only 
submit  to  arbitration  insignificant  disputes  that  would  not  be  the 
cause  of  war  if  they  were  left  unsettled,  it  may  be  answered  that, 
when  war  does  not  break  out,  we  cannot  say  with  certainty  that  it 
might  not  have  occurred,  and  that  two  disputes  between  Great  Britain 
and  the  United  States  were  of  a  kind  to  have  produced  war.  It  is 
indeed  difficult  to  believe  that  the  so-caUed  Alabama  disputes,  arising 
out  of  the  unneutral  conduct  of  Great  Britain  during  the  Civil  War, 
might  not  have  caused  war  between  Great  Britain  and  the  United 

tary  of  State  Foster's  Limitation  of  Armament  on  the  Great  Lakes,  republished, 
1915,  by  the  Carnegie  Endowment  for  International  Peace. 

'  Under  this  treaty,  2,015  cases  were  submitted.  They  were  disposed  of  as 
follows:  Cases  decided,  1,983  (of  which  1,662  were  dismissed  or  disallowed); 
cases  consolidated  with  other  cases,  25;  cases  withdrawn,  7.  (Moore,  Inter- 
national Arbitrations,  vol.  2,  p.  1314.) 

"  These  arbitration  statistics  are  taken  from  Fried's  Handbuch  der  Friedena- 
lewegitng    (Vienna  and  Leipzig,   1905),  pp.  104-105,  123-157. 


314        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

States  had  the  treaty  of  May  8,  1871,  not  submitted  them  to  arbi- 
tration by  the  so-called  Geneva  Tribunal  in  1872;  and  it  is  more 
than  conceivable  that  the  North  Atlantic  Fisheries  dispute  might 
have  resulted  in  armed  conflict  if  it  had  not  been  submitted  to  arbi- 
tration in  1909  and  actually  decided  by  a  temporary  tribunal  of  arbi- 
tration at  The  Hague  in  1910.  In  any  event,  these  two  disputes 
would  have  produced  a  tense  feeling  between  the  two  countries  ren- 
dering war  between  them  easier,  even  although  the  immediate  cause 
might  have  been  another  question. 

If  the  record  of  the  Kingdom  of  Prussia  be  considered  it  will  be 
seen  that  it  has  been  chary  of  submitting  a  dispute  with  a  foreign 
Nation  to  arbitration ;  that,  in  fact,  it  has  submitted  one  case  to  arbi- 
tration and  has  acted  as  arbiter  in  2  cases.  And  if  the  Imperial 
German  Government  be  considered  it  will  be  seen  that  the  enlarged 
Prussia  has  followed  Prussian  precedent  and  practice,  improving  upon 
it  however,  as  it  has  resorted  to  arbitration  in  13  cases  and  has  acted 
as  arbiter  in  2  cases.  It  has  been  significantly  cautious  in  submit- 
ting its  disputes  with  foreign  Nations  to  arbitration,  and  because  of 
this  unwillingness,  it  is  to  be  said  to  its  credit,  German  statesmen  have 
scrupulously  and  honorably  refrained  from  concluding  treaties  of 
arbitration.' 

Section  2.    German  Attitude  Towards  Arbitration 

It  will  be  sufficient  for  present  purposes  to  use  by  way  of  illustra- 
tion the  attitude  of  the  Imperial  German  Government  towards  arbi- 
tration at  the  First  and  Second  Hague  Peace  Conferences,  the  refusal 
of  the  Imperial  Government  to  negotiate  with  the  United  States  a 
treaty  of  General  Arbitration  upon  the  adjournment  of  the  Second 
Conference,  and  in  the  year  of  the  war  of  1914,  to  conclude  with 
the  United  States  one  of  the  series  of  treaties  for  the  advancement 
of  peace  by  agreeing  to  submit  disputes  of  all  kinds  to  the  investiga- 
tion and  report  of  a  Commission  of  Inquiry  invested  with  the  power 
of  recommending  but  not  of  deciding. 

The  First  Hague  Peace  Conference  met  on  May  18,  1899,  a  deli- 
cate compliment  to  the  Czar  of  Russia,  who  had  proposed  the  Con- 
ference and  whose  birthday  that  day  happened  to  be.  It  adjourned 
on  the  29th  day  of  July,  1899,  adopting  among  other  projects  the 
Pacific  Settlement  Convention  advocating,  but  not  prescribing,  arbi- 
tration, creating  machinery  for  the  constitution  of  temporary  tri- 
bunals if  the  parties  themselves  did  not  create  others,  and  recom- 
'  Fried,  Handbuch  der  Friedensheicegung,  1905,  pp.  104-105,  123-127. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     315 

mending  a  method  of  arbitral  procedure  if  the  countries  in  dispute 
did  not  themselves  prefer  some  other  method.  These  were  indeed 
important  results,  but  they  were  only  obtained  at  the  expense  of  a 
general  treaty  of  arbitration,  which  the  Imperial  German  Govern- 
ment opposed  and  made  of  its  rejection  the  price  of  accepting  the  pro- 
visions concerning  a  tribunal  of  arbitration. 

The  Honorable  Andrew  D.  White,  American  Ambassador  to  Ger- 
many and  Chairman  of  the  American  Delegation  to  the  First  Hague 
Peace  Conference,  kept  a  diary  of  important  occurrences  from  day 
to  day,  and  he  has  many  interesting  things  to  say  about  the  attitude 
of  the  Imperial  German  Delegation  and  of  the  state  of  mind  of  its 
Chairman,  Count,  later  Prince,  von  Miinster.  Under  date  of  May 
24th,  Mr.  White  said: 

Meeting  Count  Miinster,  who,  after  M.  de  Staal  [President 
of  the  Conference],  is  very  generally  considered  the  most  im- 
portant personage  here,  we  discussed  the  subject  of  arbitration. 
To  my  great  regret,  I  found  him  entirely  opposed  to  it,  or,  at 
least,  entirely  opposed  to  any  well-developed  plan.  He  did  not 
say  that  he  would  oppose  a  moderate  plan  for  voluntary  arbi- 
tration, but  he  insisted  that  arbitration  must  be  injurious  to 
Germany;  that  Germany  is  prepared  for  war  as  no  other  coun- 
try is  or  can  be;  that  she  can  mobilize  her  army  in  ten  days; 
and  that  neither  France,  Russia,  nor  any  other  power  can  do  this. 
Arbitration,  he  said,  would  simply  give  rival  powers  time  to 
put  themselves  in  readiness,  and  would  therefore  be  a  great 
disadvantage  to  Germany.^ 

Under  date  of  June  9,  he  wrote: 

It  now  appears  that  the  German  Emperor  is  determined  to 
oppose  the  whole  scheme  of  arbitration,  and  will  have  nothing 
to  do  with  any  plan  for  a  regular  tribunal,  whether  as  given  in  the 
British  or  the  American  scheme.  This  news  comes  from  various 
sources,  and  is  confirmed  by  the  fact  that,  in  the  subcommittee, 
one  of  the  German  delegates,  Professor  Zorn  of  Konigsberg,  who 
had  become  very  earnest  in  behalf  of  arbitration,  now  says  that 
he  may  not  be  able  to  vote  for  it.  There  are  also  signs  that  the 
German  Emperor  is  influencing  the  minds  of  his  allies — the 
sovereigns  of  Austria,  Italy,  Turkey,  and  Roumania — leading 
them  to  oppose  it.^ 

But  the  Conference  was  set  on  arbitration  to  such  a  degree  that 
Count  Miinster  began  to  find  himself  in  an  uncomfortable  position; 

^  Autobiography  of  Andrew  D.  White  (New  York,  1905,  2  vols.),  vol.  2,  p.  265. 
2Ihid.,  pp.  293-294. 


316        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

for  although  he  claimed  that  a  proposal  for  a  general  treaty  of  arbi- 
tration was  in  the  interest  of  Russia  and  France,  as  Germany  was 
armed  to  the  teeth  and  was  prepared  at  a  moment's  notice  to  settle 
its  disputes  with  either  of  these  countries  or  with  both  of  them  by 
the  time-honored  appeal  to  the  sword,  he  was  nevertheless  unwilling  to 
expose  his  Imperial  Master  to  the  criticism  which  was  making  itself 
heard  because  of  German  opposition  to  arbitration.  He  was  there- 
fore more  inclined  to  listen,  indeed  to  court,  advice,  and  on  June  15th 
Mr,  White,  seeing  this  weakening  of  the  line,  had  a  long  interview 
with  his  colleague,  who  had  called  to  see  him,  which  probably  con- 
vinced him  that,  in  the  interest  of  Germany,  his  own  attitude  as 
well  as  that  of  his  country  should  become  more  favorable  to  arbitra- 
tion.   Mr.  White  thus  records  the  interview: 

He  was  very  much  in  earnest,  and  declared  especially  against 
compulsory  arbitration.  To  this  I  answered  that  the  plan  thus 
far  adopted  contemplated  entirely  voluntary  arbitration,  with 
the  exception  that  an  obligatory  system  was  agreed  upon  as 
regards  sundry  petty  matters  in  which  arbitration  would  assist 
all  the  states  concerned;  and  that  if  he  disliked  this  latter  fea- 
ture, but  would  agree  to  the  others,  we  would  go  with  him  in 
striking  it  out,  though  we  should  vastly  prefer  to  retain  it. 

He  said,  "Yes;  you  have  already  stricken  out  part  of  it  in 
the  interest  of  the  United  States,"  referring  to  the  features  con- 
cerning the  Monroe  Doctrine,  the  regulation  of  canals,  rivers,  etc. 

"Very  true,"  I  answered,  "and  if  there  are  any  special  fea- 
tures which  affect  unfavorably  German  policy  or  interests,  move 
to  strike  them  out,  and  we  will  heartily  support  you.' 

Count  Miinster  was  not  to  be  won  over  by  an  offer  of  this  kind. 
He  was  unfriendly  to  arbitration  and  he  criticised  the  substitution  of 
inexperienced  persons  such  as  "university  professors  and  the  like  to 
carry  on  the  machinery  of  the  tribunal, ' '  but  he  was  somewhat  molli- 
fied when  informed  that  the  council  was  to  be  composed  of  the  diplo- 
mats accredited  at  The  Hague  under  the  presidency  of  the  Dutch 
Minister  of  Foreign  Affairs.  Mr.  White  urged  the  importance  of 
cooperation,  showing  that  a  failure  to  do  so  would  subject  the  Kaiser 
to  criticism  and  obloquy,  and  the  Russian  Czar,  whom  the  Count  con- 
sidered insincere,  to  universal  commendation,  and  that,  if  he  sup- 
ported arbitration  in  addition  to  the  publicity  of  the  proceedings  of 
the  Conference,  the  honor  of  the  Conference  would  be  his  and  the 
German  Emperor  would  "be  looked  upon  as,  after  all, — the  arbiter 
of  Europe." 

'  Autobiography  of  Andrew  D.  White,  vol.  2,  pp.  301-302. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      317 

Mr.  White  also  called  his  attention  to  the  fact  that  by  opposing 
arbitration  he  "not  only  put  a  club  into  the  hands  of  Socialists, 
Anarchists,  and  all  the  other  anti-social  forces,"  but  that  he  also 
alienated  "the  substantial  middle  class  and  the  great  body  of  religious 
people  in  all  nations, ' ' 

After  having  pursued  this  line  of  thought,  Mr.  White  touched 
upon  a  difficulty  which  had  found  a  lodgment  in  the  mind  of  Count 
Miinster's  Imperial  Master.    Thus,  to  quote  Mr.  White's  own  words: 

I  then  took  up  an  argument  which,  it  is  understood,  has  had 
much  influence  with  the  Emperor, — namely,  that  arbitration  must 
be  in  derogation  of  his  sovereignty, — and  asked,  "How  can  any 
such  derogation  be  possible?  Your  sovereign  would  submit  only 
such  questions  to  the  arbitration  tribunal  as  he  thought  best; 
and,  more  than  all  that,  you  have  already  committed  yourselves 
to  the  principle.  You  are  aware  that  Bismarck  submitted  the 
question  of  the  Caroline  Islands  for  arbitration  to  the  Pope, 
and  the  first  Emperor  William  consented  to  act  as  arbiter  be- 
tween the  United  States  and  Great  Britain  in  the  matter  of  the 
American  northwestern  boundary.  How  could  arbitration  affect 
the  true  position  of  the  sovereign  ? "  ^ 

As  illustrating  the  advantage  of  arbitration  Mr.  White  mentioned 
the  variety  of  petty  but  troublesome  questions  between  Germany  and 
the  United  States,  which  the  Reichstag  in  Berlin  and  the  Congress  in 
Washington  would  condemn  if  Foreign  Offices  of  the  two  countries 
should  compromise,  but  which  could  be  got  out  of  the  way  easily 
and  quietly  by  arbitration  to  the  advantage  of  both.  "And,"  to 
quote  Mr.  White's  language  on  the  point,  "this  is  just  what  would 
take  place  between  Germany  and  other  nations.  A  mass  of  vexatious 
questions  would  be  settled  by  the  tribunal,  and  the  sovereign  and  his 
Government  would  thus  be  relieved  from  parliamentary  chicanery 
based,  not  upon  knowledge,  but  upon  party  tactics  of  personal  grudges 
or  inherited  prejudices."  The  Count  seemed  impressed  with  these 
views,  and  Mr.  White  was  encouraged  to  believe  that  he  would  advise 
the  Imperial  Government  accordingly. 

The  crisis  came  by  the  16th,  under  which  date  Mr.  White  made 
the  following  entry  in  his  diary: 

This  morning  Count  Mtinster  called  and  seemed  much  excited 
by  the  fact  that  he  had  received  a  despatch  from  Berlin  in  which 
the  German  Government — which,  of  course,  means  the  Emperor 
— had  strongly  and  finally  declared  against  everything  like  an 

^  Autobiography  of  Andrew  D.  White,  vol.  2,  p.  305. 


318        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

arbitration  tribunal.  He  was  clearly  disconcerted  by  this  too 
liberal  acceptance  of  his  own  earlier  views,  and  said  that  he 
had  sent  to  M.  de  Staal  insisting  that  the  meeting  of  the  sub- 
committee on  arbitration,  which  had  been  appointed  for  this 
day  (Friday),  should  be  adjourned  on  some  pretext  until  next 
Monday;  "for,"  said  he,  "if  the  session  takes  place  today,  Zorn 
must  make  the  declaration  in  behalf  of  Germany  which  these 
new  instructions  order  him  to  make,  and  that  would  be  a  mis- 
fortune. ' '  ^ 

It  need  only  be  stated  that  Mr.  White  joined  the  Count  in  secur- 
ing an  adjournment,  the  consequence  of  which  is  thus  related  in 
Mr.  White's  own  words: 

Later  Count  Miinster  told  me  that  he  had  decided  to  send 
Professor  Zorn  to  Berlin  at  once  in  order  to  lay  the  whole  mat- 
ter before  the  Foreign  Office  and  induce  the  authorities  to  modify 
the  instructions.  I  approved  this  course  strongly,  whereupon  he 
suggested  that  I  should  do  something  to  the  same  purpose,  and 
this  finally  ended  in  the  agreement  that  Holls  should  go  with 
Zorn.2 

The  time  had  indeed  come  to  act.  The  delegates  at  The  Hague 
had  begun  to  see  and  to  feel  that  they  must  either  bend  or  break. 
The  instructions  received  from  Wilhelmstrasse  had  to  be  changed 
and  Dr.  Zorn,  technical  delegate  of  Germany,  and  Dr.  Holls,  of  the 
American  delegation,  were  sent  to  Berlin  to  interview  and  to  influ- 
ence the  authorities  in  behalf  of  concession  and  compromise.  Mr. 
White,  taking  advantage  of  his  personal  friendship,  furnished  Dr. 
Holls  with  a  letter  of  introduction  and  a  personal  letter  to  Von  Biilow, 
then  Imperial  Secretary  of  State  for  Foreign  Affairs,  which  restated 
the  arguments  already  made  and  which  must  have  had  a  large  influ- 
ence in  persuading  Germany  to  yield,  because  Mr.  White  wrote  not 
merely  as  a  personal  friend  and  as  a  delegate  to  the  Conference, 
whose  labors  he  wished  to  have  succeed,  but  as  Ambassador  of  the 
United  States  accredited  to  the  Imperial  German  Government,  in 
which  at  that  very  moment  Von  Biilow,  later  Imperial  German  Chan- 
cellor, was  Imperial  Secretary  of  State  for  Foreign  Affairs. 

After  a  reference  to  their  friendly  relations  and  a  further  refer- 
ence to  Mr.  White's  friendly  relations  of  twenty  years'  standing 
with  Von  Billow's  father,  giving  him  the  right  to  speak  frankly  as  a 
friend  and  as  man  to  man,  Mr.  White  said: 

'  Autoiiography  of  Andrew  D.  White,  vol.  2,  p.  308. 
2  Ibid.,  pp.  308-309. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      319 

It  is  generally  said  here  that  Germany  is  opposed  to  the 
whole  thing,  that  she  is  utterly  hostile  to  anything  like  arbitra- 
tion, and  that  she  will  do  all  in  her  power,  either  alone  or  through 
her  allies,  to  thwart  every  feasible  plan  of  providing  for  a  tri- 
bunal which  shall  give  some  hope  to  the  world  of  settling  some 
of  the  many  difficulties  between  nations  otherwise  than  by 
bloodshed. 

No  rational  man  here  expects  all  wars  to  be  ended  by  any- 
thing done  here ;  no  one  proposes  to  submit  to  any  such  tribunal 
questions  involving  the  honor  of  any  nation  or  the  inviolability 
of  its  territory,  or  any  of  those  things  which  nations  feel  instinc- 
tively must  be  reserved  for  their  own  decision.  Nor  does  any 
thinking  man  here  propose  obligatory  arbitration  in  any  case, 
save,  possibly,  in  sundry  petty  matters  where  such  arbitration 
would  be  a  help  to  the  ordinary  administration  of  all  govern- 
ments; and,  even  as  to  these,  they  can  be  left  out  of  the  scheme 
if  your  Government  seriously  desires  it. 

The  great  thing  is  that  there  be  a  provision  made  for  easily 
calling  together  a  court  of  arbitration  which  shall  be  seen  of  all 
nations,  indicate  a  sincere  desire  to  promote  peace,  and,  in  some 
measure,  relieve  the  various  peoples  of  the  fear  which  so  heavily 
oppresses  them  all — the  dread  of  an  outburst  of  war  at  any 
moment.^ 

After  restating  the  arguments  used  in  the  interview  with  Count 
Miinster  which  have  been  noted,  and  after  calling  attention  to  the 
fact  that  only  voluntary  arbitration  was  proposed,  leaving  the  Em- 
peror free  to  decide  in  each  ease  the  questions  to  be  submitted  or 
withheld  from  the  tribunal,  Mr.  White  thus  continued: 

As  you  are  aware,  what  is  seriously  proposed  here  now,  in 
the  way  of  arbitration,  is  not  a  tribunal  constantly  in  session, 
but  a  system  under  which  each  of  the  signatory  powers  shall 
be  free  to  choose,  for  a  limited  time,  from  an  international  court, 
say  two  or  more  judges  who  can  go  to  The  Hague  if  their  serv- 
ices are  required,  but  to  be  paid  only  while  actually  in  session 
here;  such  payment  to  be  made  by  the  litigating  parties. 

As  to  the  machinery,  the  plan  is  that  there  shall  be  a  digni- 
fied body  composed  of  the  diplomatic  representatives  of  the 
various  signatory  powers,  to  sit  at  The  Hague,  presided  over 
by  the  Netherlands  minister  of  foreign  affairs,  and  to  select 
and  to  control  such  secretaries  and  officers  as  may  be  necessary 
for  the  ordinary  conduct  of  affairs. 

Such  council  would  receive  notice  from  powers  having  differ- 
ences with  each  other  which  are  willing  to  submit  the  questions 
between  them  to  a  court,  and  would  then  give  notice  to  the  judges 

^Autobiography  of  Andrew  D.  White,  vol.  2,  pp.  309-310. 


320        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

selected  by  the  parties.  The  whole  of  the  present  plan,  except 
some  subordinate  features  of  little  account,  which  can  easily  be 
stricken  out,  is  voluntary.  There  is  nothing  whatever  obliga- 
tory about  it.  Every  signatory  power  is  free  to  resort  to  such 
a  tribunal  or  not,  as  it  may  think  best.  Surely  a  concession  like 
this  may  well  be  made  to  the  deep  and  wide  sentiment  through- 
out the  world  in  favor  of  some  possible  means  of  settling  con- 
troversies between  nations  other  than  by  bloodshed.^ 

Expressing  the  hope  that  he  was  not  going  beyond  his  province. 
Dr.  White  ended  the  letter  with  the  statement  that  he  had  laid  the 
above  facts  and  considerations  before  him  as  man  to  man,  "not  only 
in  the  interest  of  good  relations  between  Germany  and  the  United 
States,  but  of  interests  common  to  all  the  great  nations  of  the 
earth, — of  their  common  interest  in  giving  something  like  satisfac- 
tion to  a  desire  so  earnest  and  wide-spread  as  that  which  has  been 
shown  in  all  parts  of  the  world  for  arbitration." 

The  result  of  the  conferences  of  Messrs.  Zorn  and  Holls,  in  which 
each  appears  to  have  played  an  honorable  and  an  influential  part, 
is  stated  by  Mr.  White  in  the  following  passage  of  his  diary  under 
date  of  June  23d :  ^ 

But  the  great  matter  of  the  day  was  the  news,  which  has  not 
yet  been  made  public,  that  Prince  Hohenlohe,  the  German  chan- 
cellor, has  come  out  strongly  for  the  arbitration  tribunal,  and 
has  sent  instructions  here  accordingly.  This  is  a  great  gain,  and 
seems  to  remove  one  of  the  worst  stumbling-blocks.  But  we  will 
have  to  pay  for  this  removal,  probably,  by  giving  up  section  10 
of  the  present  plan,  which  includes  a  system  of  obligatory  arbi- 
tration in  various  minor  matters, — a  system  which  would  be  of 
use  to  the  world  in  many  ways.' 

The  Imperial  German  Government  yielded  and  accepted  the  pro- 
posed tribunal,  misnamed  the  Permanent  Court  of  Arbitration  at 

^  Autobiography  of  Andrew  D.  White,  vol.  2,  pp.  312-313. 
2  Under  date  of  June  21,  Dr.  White  wrote  as  to  the  effect  of  his  letter  and 
the  combined  activity  of  Count  Mlinster,  himself,  and  their  agents : 

Early  in  the  morning  received  a  report  from  Holls,  who  arrived  from 
Hamburg  late  last  night.  His  talks  with  Biilow  and  Prince  Hohenlohe 
had  been  most  encouraging.  Biilow  has  sent  to  the  Emperor  my  long 
private  letter  to  himself,  earnestly  urging  the  acceptance  by  Germany  of 
our  plan  of  arbitration.  Prince  Hohenlohe  seems  to  have  entered  most 
cordially  into  our  ideas,  giving  Holls  a  card  which  would  admit  him  to 
the  Emperor,  and  telegraphing  a  request  that  his  Majesty  see  him.  But 
the  Emperor  was  still  upon  his  yacht,  at  sea,  and  Holls  could  stay  no 
longer.  Biilow  is  trying  to  make  an  appointment  for  him  to  meet  the 
Emperor  at  the  close  of  the  week.  (Ibid.,  p.  318.) 
*  Ibid.,  p.  321. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     321 

The  Hague.  In  accordance  with  Mr.  White's  premonition,  the 
Imperial  Government  insisted  that  the  general  treaty  of  arbitration 
should  be  dropped  as  the  price  of  concession,  and  it  was  so  dropped. 

The  record  of  Germany  at  the  Second  Hague  Peace  Conference 
in  1907  is  so  well  known  that  it  only  needs  to  be  called  to  the  reader's 
attention.  As,  however,  it  is  material  to  the  present  purpose  to  show 
that  the  attitude  of  the  Imperial  Government  at  the  Second  Con- 
ference, although  outwardly  friendly,  was  nevertheless  inwardly  hos- 
tile to  arbitration,  some  observations  of  a  general  nature  will  be  in 
place. 

Thus,  in  his  address  on  the  subject  of  arbitration  delivered  on 
July  23,  1907,  His  Excellency  Baron  Marschall  von  Bieberstein,  then 
Ambassador  to  Turkey  and  formerly  Secretary  of  State  for  Foreign 
Affairs  of  the  Empire  and  destined  to  be  Imperial  Ambassador  to 
Great  Britain,  said: 

At  the  time  of  the  First  Peace  Conference  the  German  dele- 
gate declared  in  the  name  of  his  Government  that  the  experience 
had  up  to  that  time  in  the  field  of  arbitration  was  not  of  a 
nature  to  permit  it  to  obligate  itself  at  that  time  in  favor  of 
obligatory  arbitration. 

Eight  years  have  elapsed  since  that  declaration  and  experi- 
ence in  the  field  of  arbitration  has  grown  to  considerable  degree. 
The  question  has  also  been  the  object  of  deep  and  prolonged 
study  on  the  part  of  the  German  Government.  As  a  result  of 
this  examination  and  impressed  by  the  happy  results  produced 
by  arbitration,  the  Government  is  now  favorable,  in  principle,  to 
the  idea  of  obligatory  arbitration.^ 

Encouraged  by  this  attitude  on  the  part  of  the  Imperial  German 
Government,  the  Conference  settled  down  to  the  preparation  of  a 
draft.  But  every  proposal  of  the  Conference  to  incorporate  in  it 
the  concrete  principle,  accepted  by  Germany  in  the  abstract,  met 
with  the  outspoken  opposition  of  the  German  delegation.  Thus,  when 
the  draft  of  the  treaty  had  been  prepared  and  accepted  in  commit- 
tee— over  Germany's  protest,  be  it  said — and  submitted  for  its 
approval  to  the  First  Commission  dealing  with  arbitration,  the  Baron 
stated,  according  to  the  official  report  of  the  proceedings, 

that,  while  he  was  an  advocate  of  compulsory  arbitration  and 
applauded  the  arbitration  treaty  recently  concluded  between 
Italy  and  Argentina,  the  project  of  the  committee  was  unaccept- 
able for  the  reasons  which  he  stated  later;  that  there  were  two 

'  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents, 
tome  ii,  p.  286. 


322        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

systems  for  putting  compulsory  arbitration  into  practice  which 
he  characterized  as  the  individual  system  and  the  universal  sys- 
tem ;  that  according  to  the  former  each  nation  reserves  the  indi- 
vidual freedom  of  choosing  the  parties  with  whom  it  is  to  agree, 
the  cases  are  defined  and  specified,  those  subjects  which  seem 
susceptible  of  arbitration  are  chosen  and  the  details  are  adapted 
to  those  subjects;  that  with  regard  to  disputes  concerning  the 
interpretation  of  treaties,  the  nations  which  have  concluded 
them  are  the  ones  which  insert  therein  the  stipulations  to  arbi- 
trate which  may  be  done  between  two  nations,  between  several, 
and  even  between  all  the  nations  of  the  world  when  the  treaty 
is  of  a  universal  character  as  in  the  case  of  the  Postal  Union. 
He  then  stated  that  he  would  uphold  and  defend  two  theses: 

1.  The  conclusion  of  a  treaty  of  compulsory  arbitration  is 
only  possible  by  applying  the  individual  system,  whereas  in  the 
universal  system  the  word  ' '  compulsory ' '  will  be  but  an  honorary- 
title  the  use  of  which  will  not  cover  the  numberless  defects  of 
the  legal  obligation  inherent  in  the  system, 

2.  Progress  toward  the  peaceful  solution  of  international 
disputes  can  only  be  realized  by  means  of  individual  treaties, 
while  a  universal  treaty,  with  its  necessarily  vague,  elastic  and 
general  terms,  will  tend  rather  to  engender  fresh  discord  than 
to  furnish  a  solution  of  the  original  difficulty.^ 

Many  of  the  reasons  advanced  by  His  Excellency  are  weighty 
and  worthy  of  consideration,  but  they  need  not  be  set  forth  at  length 
or  even  summarized,  as  they  were  either  born  of  the  moment  or 
advanced  for  the  express  purpose  of  defeating  a  universal,  while 
confessing  faith  in  the  individual  treaty,  and  we  are  in  a  posi- 
tion to  test  the  sincerity  of  this  profession  by  the  refusal  of  Ger- 
many, after  the  adjournment  of  the  Conference,  to  enter  into  an 
individual  treaty  of  arbitration  with  the  United  States.  But,  before 
leaving  this  subject  and  taking  up  Secretary  Root's  experience  with 
Germany  in  the  matter  of  arbitration,  the  impression  which  Baron 
Marschall  von  Bieberstein's  utterances  in  conference  made  upon  his 
colleagues  should  not  pass  unnoticed.  For  this  purpose  a  brief  pas- 
sage of  the  reply  made  by  the  Honorable  Joseph  H.  Choate,  Chairman 
of  the  American  delegation,  on  behalf  of  the  United  States,  is  quoted : 

I  should  like  to  say  a  few  words  in  reply  to  the  important 
discourse  delivered  by  the  First  Delegate  of  Germany,  with  all 
the  deference  and  regard  to  which  he  is  justly  entitled  because 
of  the  mighty  empire  that  he  represents,  as  well  as  for  his  own 
great  merits  and  his  unfailing  personal  devotion  to  the  con- 

^  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents, 
tome  II,  p.  50. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      323 

sideration  of  the  important  subjects  that  have  arisen  before  the 
Conference.  But  with  all  this  deference,  it  seems  to  me  that 
either  there  are,  in  this  Conference,  two  First  Delegates  of  Ger- 
many or,  if  it  be  only  the  one  whom  we  have  learned  to  recognize 
and  honor,  he  speaks  with  two  different  voices.  Baron  Marschall 
is  an  ardent  admirer  of  the  abstract  principle  of  arbitration  and 
even  of  obligatory  arbitration  between  those  whom  he  chooses 
to  act  with,  but  when  it  comes  to  putting  this  idea  into  concrete 
form  and  practical  effect  he  appears  as  our  most  formidable 
adversary.  He  appears  like  one  who  worships  a  divine  image  in 
the  sky,  but  when  it  touches  the  earth,  it  loses  all  charm  for  him. 
He  sees  as  in  a  dream  a  celestial  apparition  which  excites  his 
ardent  devotion,  but  when  he  wakes  and  finds  her  by  his  side 
he  turns  to  the  wall,  and  will  have  nothing  to  do  with  her.' 

Upon  the  adjournment  of  the  Conference,  Secretary  Root  decided 
to  take  the  Imperial  German  Government  at  its  word  and,  as  Baron 
Marschall  von  Bieberstein,  speaking  in  its  behalf,  had  declared  him- 
self in  favor  of  individual  treaties  with  Nations  of  its  choice,  Mr. 
Root  proposed  that  Germany  should  conclude  with  the  United  States 
a  treaty  of  the  kind  which  France  and  Great  Britain  had  signed 
October  14,  1903,  and  because  of  its  general  acceptance  was  then,  as  it 
is  now,  the  model  of  a  general  treaty  of  arbitration.  It  was  one  of  a 
series  of  which  Mr.  Root  negotiated  twenty-five  during  the  year  suc- 
ceeding the  adjournment  of  the  Second  Conference.  It  bound  the 
nations,  in  ease  of  a  failure  to  reach  an  agreement  through  diplomatic 
channels,  to  arbitrate  disputes  of  a  legal  nature  relating  to  the  inter- 
pretation of  treaties  existing  between  the  contracting  parties,  with 
the  restriction,  however,  that  they  did  not  affect  the  vital  interests, 
independence,  or  honor  of  the  contracting  States  and  that  they  did 
not  concern  the  interests  of  third  parties.  The  Imperial  German 
Government  refused  to  conclude  such  a  treaty,  although  Mr.  Root 
urged  the  matter. 

Again,  in  1913  and  in  1914,  Secretary  Bryan  earnestly  besought 
the  Imperial  German  Government  to  negotiate  a  treaty  by  which 
the  contracting  parties  pledged  their  faith  to  submit  all  disputes 
between  them  to  a  Commission  of  Inquiry,  to  be  composed  of  five 
members,  which  Commission  would  have  a  year  within  which  to 
examine  and  report  upon  any  dispute  submitted  by  the  parties  or  by 
one  or  the  other  of  them,  during  which  period  each  party  bound 
itself  not  to  resort  to  force  or  a  hostile  action  against  the  other. 

The  Imperial  German  Ambassador,  as  was  the  case  with  Baron 

^  Deuxiime  Conference  Internationale  de  la  Paix,  Actes  et  Documents, 
tome  II,  p.  72. 


324        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Marschall  von  Bieberstein,  accepted  in  principle  but  refused  to  put 
the  principle  in  concrete  and  binding  form.  Yet,  this  treaty  would 
have  been  but  one  of  thirty  negotiated  by  Secretary  Bryan  in  the 
course  of  1913-14,  and  would  have  been  similar  to  the  treaties  con- 
cluded with  Great  Britain  and  France  after  the  outbreak  of  the 
war  of  1914.  The  reason  for  this  refusal  seems  to  be  that  the  Im- 
perial German  Government  was  as  unwilling  in  1914,  as  in  1899  and 
in  1907,  to  tie  its  hands  by  arbitration,  and  the  language  used  by 
the  Imperial  Secretary  of  State  in  1914  to  the  British  Ambassador 
at  Berlin  strangely  recalls  the  language  of  Count  Miinster  to  Ambas- 
sador White  at  The  Hague. 

In  an  interview  of  August  1,  1914,  between  Herr  von  Jagow, 
Imperial  German  Secretary  of  State,  and  Sir  Edward  Goschen, 
British  Ambassador  at  Berlin,  the  latter  communicated  the  substance 
of  Sir  Edward  Grey's  telegram  of  that  date  informing  him  of  "the 
readiness  of  Austria  to  discuss  with  Russia  and  the  readiness  of 
Austria  to  accept  a  basis  of  mediation." ' 

According  to  the  British  Ambassador's  report,  Herr  von  Jagow 
said  "that  Austria's  readiness  to  discuss  was  the  result  of  German 
influence  at  Vienna,  and,  had  not  Russia  mobilized  against  Germany, 
all  would  have  been  well.  But  Russia,  by  abstaining  from  answering 
Germany's  demand  that  she  should  demobilize,  had  caused  Germany 
to  mobilize  also.  Russia  had  said  that  her  mobilization  did  not 
necessarily  imply  war,  and  that  she  could  perfectly  well  remain 
mobilized  for  months  without  making  war.  This  was  not  the  case 
with  Germany.  She  had  the  speed  and  Russia  had  the  numbers,  and 
the  safety  of  the  German  Empire  forbade  that  Germany  should  allow 
Russia  time  to  bring  up  masses  of  troops  from  all  parts  of  her  wide 
dominions."  2  And  in  the  interview  of  August  4th,  as  reported  by 
the  British  Ambassador,  between  the  Imperial  German  Secretary  of 
State  and  the  Ambassador,  the  latter  asked  in  the  name  of  his 
Government  whether  "the  Imperial  Government  would  refrain  from 
violating  Belgian  neutrality.  Herr  von  Jagow  at  once  replied  that 
he  was  very  sorry  to  say  that  his  answer  must  be  'No,'  as,  in  conse- 
quence of  the  German  troops  having  crossed  the  frontier  that  morning, 
Belgian  neutrality  had  been  already  violated.  Herr  von  Jagow 
again  went  into  the   reasons  why  the   Imperial   Government  had 

1  Sir  Edward  Grey  to  Sir  Edward  Goschen,  British  Ambassador  at  Berlin, 
British  Blue  Booh,  No.  1,  d.  No.  131;  Diplomatic  Documents  Relating  to  the 
Outbreak  of  the  European  War,  p.  988. 

2  Sir  Edward  Goschen,  British  Ambassador  at  Berlin,  to  Sir  Edward  Grey, 
British  Blue  Book,  No.  1,  d.  No.  138;  ibid.,  p.  993. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     325 

been  obliged  to  take  this  step,  namely,  that  they  had  to  advance  into 
France  by  the  quickest  and  easiest  way,  so  as  to  be  able  to  get  well 
ahead  with  their  operations  and  endeavor  to  strike  some  decisive  blow 
as  early  as  possible.  It  was  a  matter  of  life  and  death  for  them, 
as  if  they  had  gone  by  the  more  southern  route  they  could  not  have 
hoped,  in  view  of  the  paucity  of  roads  and  the  strength  of  the 
fortresses,  to  have  got  through  without  formidable  opposition  en- 
tailing great  loss  of  time.  This  loss  of  time  would  have  meant  time 
gained  by  the  Russians  for  bringing  up  their  troops  to  the  German 
frontier.  Rapidity  of  action  was  the  great  German  asset,  while  that 
of  Russia  was  an  inexhaustible  supply  of  troops. ' ' ' 

In  a  remarkable  article  entitled  ''Military  Strategy  v.  Diplomacy," 
written  by  Mr.  Munroe  Smith,  professor  of  jurisprudence  in  Colum- 
bia University  in  the  City  of  New  York  and  a  doctor  of  jurisprudence 
of  the  University  of  Gottingen,  thus  comments  upon  the  views  of 
Count  von  Miinster  and  Herr  von  Jagow  and  the  practice  of  the 
Imperial  German  Government  as  stated  by  the  latter  in  1914: 

There  is,  however,  a  far  broader  aspect  to  the  problem.  Of  all 
means  which  civilization  has  provided  to  avert  war,  negotiation 
is  the  most  important.  Direct  negotiation  may  be  and  often  is 
supplemented  by  the  friendly  offices  of  nations  not  immediately 
concerned  and  by  offers  of  mediation;  but  these  are  but  exten- 
sions of  negotiation.  Arbitration  is  a  potent  agency  for  the 
peaceful  settlement  of  controversies,  but  arbitration  cannot  be 
set  in  motion  without  negotiation.  For  negotiation  time  is  essen- 
tial. In  the  interest  of  the  peace  of  the  world,  therefore,  it  is 
of  the  highest  importance  that  the  political  heads  of  every  state 
should  be  ever  on  their  guard  against  the  attempts  of  their  mili- 
tary advisers  to  convince  them  that  immediate  attack  is  necessary. 
It  is  usually  declared  to  be  a  matter  of  life  or  death.  To  the 
nation  primarily  concerned  it  is  almost  always,  in  fact,  only  a 
matter  of  greater  or  less  chance  of  initial  success.  To  peace, 
however,  it  is  always  a  matter  of  death.^ 

It  is  therefore  a  fact,  which  may  indeed  be  explained  but  which 
cannot  be  controverted,  that  the  Imperial  German  Government  has 
stood  aloof  from  arbitration,  that  it  has  rarely  obligated  itself  to 
apply  this  form  of  settlement;  that,  in  the  two  Hague  Peace  Confer- 
ences, its  delegates  opposed  projects  of  arbitration  with  such  energy 

^  Sir  Edward  Goschen,  British  Ambassador  at  Berlin,  to  Sir  Edward  Grey, 
August  8,  1914,  British  Blue  Book,  No.  1,  d.  No.  160;  DiplomatiG  Documents 
Relating  to  the  Outbreak  of  the  European  War,  p.  1006. 

2  Political  Science  Quarterly,  March,  1915,  vol.  30,  No.  1,  pp.  81-82. 


326        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

and  vigor  that  they  were  able  to  check  for  the  moment  a  movement 
which  they  could  not  wholly  dam.  But  there  are  some  things  which 
physical  power  cannot  accomplish,  and  opposition  to  arbitration  as  a 
form  of  peaceful  settlement  is  as  futile  as  opposition  to  the  Pytha- 
gorean theorem,  which  Sydney  Smith  once  wittily  dared  Lord  Hawks- 
bury,  when  leader  of  the  Tory  Majority  in  Parliament,  to  repeal  by 
statute. 

Section  3.   The  "Frye"  Case 

If  the  United  States  should  be  criticised,  as  a  partisan  of  arbi- 
tration, and  indeed  as  its  sponsor  in  the  modern  world,  for  not  offer- 
ing to  arbitrate  its  disputes  with  Germany,  notwithstanding  Ger- 
many's known  repugnance  to  arbitration,  it  is  proper  to  suggest  that 
something  more  than  an  offer  and  an  agreement  to  arbitrate  are 
required.  The  given  word  must  be  kept,  and  it  must  be  said  with 
regret  that  the  attitude  of  the  Imperial  German  Government  towards 
solemn  international  agreements  during  the  present  war,  not  to  speak 
of  the  past,  leaves  something  to  be  desired,  and  that,  in  plain  terms, 
the  United  States  would  have  had  no  assurance,  after  a  violation  of 
its  pledged  word  by  Germany  on  the  plea  of  necessity  in  the  inter- 
national agreements  concerning  Luxemburg  and  Belgium,  that  the 
Imperial  Government  would  keep  its  agreement  to  arbitrate,  that  it 
would  refrain  from  the  commission  of  the  unlawful  acts  submitted 
to  arbitration,  until  the  question  of  right  or  wrong  should  be  deter- 
mined by  the  award  of  an  arbitral  tribunal,  that  it  would  execute 
the  award  of  that  tribunal  after  it  had  been  rendered  if  the  award 
were  contrary  to  its  contentions,  and  that  it  would  not,  pleading 
necessity  or  vital  interests,  self-preservation  or  self-defense,  continue 
the  conduct  complained  of  until  the  close  of  the  war,  leaving  the 
entire  matter  to  be  patched  up  by  the  payment  of  an  indemnity  to 
compensate  American  interests  for  the  losses  which  they  had  incurred 
either  because  of  Germany's  refusal  to  abide  by  the  award  or  because 
of  its  interpretation  of  the  award  in  a  way  inconsistent  with  the 
interpretation  put  upon  it  by  the  United  States.  During  the  period 
of  its  neutrality,  the  United  States  intimated  that  it  would 
not  make  a  treaty  of  arbitration  concerning  the  loss  of  life, 
for  it  was  unwilling  to  arbitrate  the  right  of  a  foreign  Nation  to 
put  to  death  American  citizens,  although,  if  the  United  States  had 
had  a  treaty  of  arbitration  with  the  Imperial  Government  such  as 
it  has  with  Great  Britain  and  France,  which  Germany  was  requested 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      327 

to  negotiate  but  would  not,  or  if  it  had  had  a  treaty  providing  for  a 
Commission  of  Inquiry  similar  to  treaties  of  this  kind  with  Great 
Britain  and  France,  which  Germany  was  urged  to  conclude  but  did 
not,  the  United  States  would  have  been  forced  to  arbitrate  Germany 's 
contentions,  or  submit  them  to  investigation  and  report  at  Germany's 
request  unless  the  United  States  was  prepared  to  consider  solemn 
compacts  as  ''scraps  of  paper." 

But  it  is  difficult  to  see,  in  view  of  the  whole  situation,  how  the 
United  States  could  have  been  compelled,  although  it  might  have 
been  justified,  in  submitting  to  arbitration  or  to  a  Commission  of 
Inquiry  at  the  request  of  the  Imperial  Government  all  of  its  out- 
standing differences  without  an  existing  agreement  to  do  so;  but  it 
would  assuredly  not  have  been  justified  in  so  doing  unless  the  Imperial 
Government  would  have  agreed  to  stop,  during  the  arbitral  pro- 
ceedings, its  conduct  whereof  complaint  was  made.  We  know,  however, 
that  Germany  was  unwilling,  even  when  the  question  of  peace  and  war 
hung  in  the  balance,  to  suspend  its  actions,  although  the  United  States 
expressed  its  willingness  to  consider  Germany's  proposals  after  the 
severing  of  diplomatic  relations  if,  during  the  interval  of  negotia- 
tions, the  actions  complained  of  should  be  renounced.^ 

But  we  do  not  need  to  speculate  as  to  what  the  attitude  or  con- 
duct of  Germany  would  have  been  in  the  case  of  an  offer  and  an 
acceptance  by  one  or  the  other  country  to  submit  to  arbitration  the 
disputes  which  had  arisen  out  of  the  war,  because  we  have  in  the 
sinking  and  in  the  arbitration  of  Tlie  William  P.  Frye  a  concrete  case. 

On  January  27,  1915,  The  William  P.  Frye,  a  steel  sailing  vessel 
owned  by  American  citizens,  and  navigating  under  the  American  flag, 
carrying  a  cargo  of  186,950  bushels  of  wheat  from  the  port  of  Seattle 
in  the  State  of  Washington  to  Queenstown,  Falmouth,  or  Plymouth 
for  orders,  was  encountered  in  the  South  Atlantic  on  the  high  seas  by 

1  Under  date  of  February  12,  1917,  Secretary  Lansing  thus  addressed 
Paul  Ritter,  Minister  for  Switzerland,  who  was  in  charge  oi  the  interests  of 
Germany  in  the  United  States  after  the  rupture  of  diplomatic  relations: 

I  am  requested  by  the  President  to  aay  to  you,  in  acknowledging  the 
memorandum  which  you  were  kind  enough  to  send  me  on  the  11th  instant, 
that  the  Government  of  the  United  States  would  gladly  discuss  with  the 
German  Government  any  questions  it  might  propose  for  discussion  were 
it  to  withdraw  its  proclamation  of  the  31st  of  January,  in  which,  sud- 
denly and  without  previous  intimation  of  any  kind,  it  cancelled  the  assur- 
ances which  it  had  given  this  Government  on  the  4th  of  May  last,  but 
that  it  does  not  feel  that  it  can  enter  into  any  discussion  with  the  German 
Government  concerning  the  policy  of  submarine  warfare  against  neutrals 
which  it  is  now  pursuing  unless  and  until  the  German  Government  renews 
its  assurances  of  the  4th  of  May  and  acts  upon  the  assurance.  (OflBcial  text 
published  by  the  Department  of  State.) 


328        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  Prinz  Eitel  Friedrich,  an  auxiliary  cruiser  of  the  Imperial  Ger- 
man Navy,  which  compelled  the  Frye  to  stop  and  sent  on  board  an 
armed  boarding  party  which  took  possession  of  the  vessel.  After  an 
examination  of  the  ship's  papers,  the  commander  of  the  cruiser 
directed  that  the  cargo  be  thrown  overboard,  but  subsequently  decided 
to  destroy  the  vessel,  and  on  the  following  morning,  by  his  order,  the 
Frye  was  sunk.  On  April  3,  1915,  the  United  States  presented  a  claim 
for  the  value  of  the  ship  and  the  damages  involved  in  its  destruction, 
amounting  to  $228,059.54.  No  claim  was  made  for  the  cargo,  which 
before  the  destruction  had  apparently  ceased  to  be  American  property. 
The  Imperial  German  Government  promptly  replied  on  the  following 
day,  assuming  liability  for  the  claim.^ 

Without  going  into  details,  it  is  sufficient  to  state  for  present  pur- 
poses that  Article  13  of  the  treaty  of  1799,  revived  by  the  treaty  of 
1828,  provides  that  "in  the  case  supposed  of  a  vessel  stopped  for 
articles  of  contraband,  if  the  master  of  the  vessel  stopped  will  deliver 
out  the  goods  supposed  to  be  of  contraband  nature,  he  shall  be  ad- 
mitted to  do  it,  and  the  vessel  shall  not  in  that  case  be  carried  into 
any  port,  nor  further  detained,  but  shall  be  allowed  to  proceed  on 
her  voyage." 

The  Imperial  German  Government  maintained  that,  because  of 
the  provisions  of  the  Declaration  of  London  permitting  the  sinking 
of  neutral  prizes,  it  could  sink  the  Frye,  but  because  of  the  pro- 
visions of  the  treaty  of  1799,  carried  over  by  the  treaty  of  1828,  it 
would  have  to  pay  damages  for  the  destruction  of  the  vessel.  The 
United  States,  on  the  other  hand,  maintained  that  the  Declaration 
of  London  was  not  binding  upon  it,  not  having  been  ratified  by  any 
of  the  signatories,  that  therefore  it  was  not  international  law,  and 
that  the  obligation  of  the  treaty  allowing  an  American  vessel  to  pursue 
its  course  upon  an  offer  to  deliver  out  its  cargo,  was  not  satisfied 
by  a  willingness  to  pay  damages  for  the  sinking  of  the  vessel. 

The  German  Government  submitted  the  case  to  its  prize  court  at 
Hamburg,  which  justified  the  sinking  of  the  vessel  on  principles  of 
international  law,  admitting  however  the  validity  of  the  Prussian 
Treaty,  but  it  was  unable  to  assess  damages,  because  the  interested 
parties  failed  to  appear,  or  to  submit  the  necessary  data.^    The  Im- 

*  OflScial  text,  Americcm  Journal  of  International  Law,  Special  Supplement, 
July,   1915,  pp.   180-193. 

2  "The  Court  found  by  its  judgment  of  the  10th  instant  (July  10,  1915)  that 
the  cargo  of  the  American  vessel,  William  P.  Frye,  was  contraband,  that  the 
vessel  could  not  be  carried  into  port,  and  that  the  sinking  was  therefore  justi- 
fied; at  the  same  time  the  Court  expressly  recognized  the  validity  of  the 
Prussian-American    treaty    stipulations    severally   mentioned    for    the   relations 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      329 

perial  German  Government  therefore  suggested,  instead  of  diplomatic 
negotiations,  that  each  Government  designate  an  expert,  that  the  two 
should  jointly  fix  the  amount  of  indemnity  of  the  vessel  and  the 
amount  of  any  American  property  that  might  have  been  destroyed 
with  it,  under  reservation,  that  such  payment  would  not  constitute  a 
satisfaction  for  the  violation  of  American  rights  * '  but  a  duty  or  policy 
of  this  Government  founded  on  the  existing  treaty  stipulations." 
The  Imperial  Government  further  proposed  that,  if  this  method  of 
settlement  should  prove  unsatisfactory  to  the  United  States,  it  would 
submit  the  interpretation  of  the  treaties  to  the  tribunal  at  The  Hague, 
pursuant  to  Article  38  of  The  Hague  Convention  for  the  pacific  set- 
tlement of  international  disputes.  The  United  States  agreed  on 
August  10,  1916,  to  the  appointment  of  experts  to  determine  the 
amount  of  the  indemnity,  and  accepted  the  condition  upon  which  it 
would  be  paid,  provided  that  *'the  acceptance  of  such  payment  should 
likewise  be  understood  to  be  without  prejudice  to  the  contention  of 
the  Government  of  the  United  States  that  the  sinking  of  the  Frye 
was  without  legal  justification,  and  provided  also  that  an  arrange- 
ment can  be  agreed  upon  for  the  immediate  submission  to  arbitration 
of  the  question  of  legal  justification  in  so  far  as  it  involves  the  inter- 
pretation of  existing  treaty  of  stipulations. ' ' ' 

The  facts  were  admitted.  The  liability  of  Germany  to  pay  in- 
demnity was  likewise  admitted.  The  amount  in  dispute  was  trifling 
and  was  as  nothing  to  the  real  issue  between  the  two  Governments, 
namely,  the  right  of  Germany  to  sink  American  vessels  in  the  teeth 
of  the  treaties  with  Prussia  invoked  by  the  United  States. 

In  order  to  test  the  good  faith  of  the  German  Government  in 
this  controversy  and  the  good  faith  that  might  be  expected  in  other 
matters,  it  is  only  necessary  to  consider  somewhat  in  detail  various 
phases  of  the  Frye  case. 

As  to  the  question  of  an  umpire.  The  United  States  proposed 
that  an  umpire  should  be  selected  in  order  to  pass  upon  the  question 
of  the  indemnity  if  the  experts  should  fail  to  agree,  but  this  Ger- 
many rejected  on  the  ground  that  "in  the  cases  of  the  ascertainment 
of  damages  hitherto  arranged  between  the  German  Government  and 
a  neutral  Government  from  similar  causes,  the  experts  named  by  the 

between  the  German  Empire  and  America,  so  that  the  sinking  of  the  ship  and 
cargo,  so  far  as  American  property,  makes  the  German  Empire  liable  for  indem- 
nity. The  prize  court  was  unable  to  fix  the  indemnity  itself,  since  it  had  no 
data  before  it,  failing  the  receipt  of  the  necessary  detail  from  the  parties 
interested."  (Oflacial  text,  American  Journal  of  International  Law,  Special  Sup- 
plement, July,  1915,  pp.  190-191.) 
'  Ihid.,  p.   192. 


330        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

two  parties  have  always  reached  an  agreement  as  to  the  amount  of 
the  damage  without  difficulty;  should  it  not  be  possible,  however,  to 
reach  an  agreement  on  some  point,  it  could  probably  be  settled  by 
diplomatic  negotiation."^  That  is  to  say,  Germany  rejected  the 
proposal  of  the  United  States  that  the  nature  and  amount  of  the 
indemnity  should  be  arranged  through  diplomatic  channels,  yet  it 
proposed,  after  the  delay  of  appointing  experts,  to  resort  to  diplo- 
matic channels,  should  the  experts  fail  to  agree.  In  reply  to  Ger- 
many's objection  to  an  umpire,  the  United  States  waived  the  point, 
but  insisted  that ' '  in  agreeing  to  this  arrangement  it  should  be  under- 
stood in  advance  that  in  case  the  amount  of  indemnity  is  not  settled 
by  the  joint  commission  of  experts  or  by  diplomatic  negotiation,  the 
question  will  then  be  referred  to  an  umpire  if  that  is  desired  by  the 
Government  of  the  United  States."  ^ 

To  this  note  of  October  12,  1915,  Germany  replied  in  a  note  of 
November  29,  1915,  stating  that  "the  consultation  of  an  umpire  would 
depend  materially  upon  whether  the  differences  of  opinion  between 
the  two  experts  pertained  to  questions  of  principle  or  merely  to  the 
appraisement  of  certain  articles.  The  consultation  of  an  umpire 
could  only  be  considered  at  all  in  the  case  of  appraisements  of  this 
nature."^ 

As  to  the  meeting  place  of  the  commission  of  experts.  The  United 
States,  in  its  note  of  October  12,  proposed  "that  its  meetings  should 
be  held  in  the  United  States  because  .  .  .  any  evidence  which  the 
German  Government  may  wish  to  have  produced  is  more  accessible 
and  can  more  conveniently  be  examined  there  than  elsewhere. ' ' 

To  this  proposal  Germany  thus  replied  on  November  29th: 

The  German  Government  regrets  that  it  cannot  comply  with 
the  wish  of  the  American  Government  to  have  the  experts  meet 
in  Washington,  since  the  expert  nominated  by  it,  Dr.  Greve, 
of  Bremen,  director  of  the  North  German  Lloyd,  is  unable  to 
get  away  from  here,  and  furthermore  would  be  exposed  to  the 
danger  of  capture  during  a  voyage  to  America  in  consequence 
of  the  conduct  of  maritime  war  by  England  contrary  to  inter- 
national law.  Should  the  American  expert  likewise  be  unable 
to  get  away,  the  two  experts  might  perhaps  get  in  touch  with 
each  other  by  correspondence. 

Should  the  American  Government  insist  on  its  demands  for 

^German  note  of  September  19,  1915;  official  text,  American  Journal  of 
International  Law,  Special  Supplement,  October,  1916,  p.  345. 

2  American  note  of  October  12,  1915;  official  text,  American  Journal  of 
International  Law,   Special   Supplement,  October,   1916,  p.  347. 

^  Ibid.,  p.  350. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      331 

the  meeting  of  the  experts  at  Washington  or  the  early  choice  of 
an  umpire,  the  only  alternative  would  be  to  arrange  the  fixing 
of  damages  by  diplomatic  negotiation.  In  such  an  event  the 
German  Government  begs  to  await  the  transmission  of  a  state- 
ment of  particulars  of  the  various  claims  for  damages  accom- 
panied by  the  necessary  proofs.^ 

Here  again  the  German  Government,  having  rejected  the  settle- 
ment by  diplomatic  negotiation,  reverts  to  this  method  after  the 
interposition  of  delay. 

As  to  arbitration.  The  United  States  agreed  to  Germany's  re- 
quest that  the  negotiations  concerning  the  form  of  the  agreement 
of  arbitration  be  conducted  in  Berlin  upon  a  draft  to  be  submitted 
by  Germany,  but  suggested  that  the  arbitration  should  be  by  the 
summary  procedure  provided  by  the  revised  convention  for  the  pacific 
settlement  of  international  disputes,  rejecting  the  oral  in  favor  of 
written  proceedings.  To  this  Germany  objected  on  the  ground  that 
"the  summary  procedure  is  naturally  intended  only  for  differences 
of  opinion  of  inferior  importance,  whereas  the  German  Government 
attaches  very  particular  importance  to  the  interpretation  of  the 
Prussian- American  treaties  which  have  existed  for  over  100  years."  ' 

Finally,  as  to  the  American  proposal  for  the  conduct  of  naval  oper- 
ations pending  the  award.  To  this  proposal  the  Imperial  German 
Government  stated  in  its  note  of  September  19,  1915,  that  "it  has 
issued  orders  to  the  German  naval  forces  not  to  destroy  American 
merchantmen  which  have  loaded  conditional  contraband,  even  when 
the  conditions  of  international  law  are  present,  but  to  permit  them  to 
continue  their  voyage  unhindered  if  it  is  not  possible  to  take  them 
into  port.  On  the  other  hand,  it  must  reserve  to  itself  the  right  to 
destroy  vessels  carrying  absolute  contraband  wherever  such  destruc- 
tion is  permissible  according  to  the  provisions  of  the  Declaration  of 
London.  "3 

In  view  of  the  statement  repeatedly  made  in  the  course  of  this 
narrative,  that  the  Declaration  of  London  was  not  an  international 
agreement  and  not  binding  between  Germany  and  the  United  States, 
it  is  unnecessary  to  observe  that  it  could  not  be  invoked  to  super- 
sede the  treaty  between  Prussia  and  the  United  States.  To  this  state- 
ment, Secretary  Lansing  thus  replied  in  his  note  of  October  12,  1915 : 

^  Official  text,  American  Journal  of  International  Law,  Special  Supplement, 
October,  1916,  p.  350. 
'Ibid.,  pp.  350-351. 
'Ibid.,  p.  346. 


332        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Without  admitting  that  the  Declaration  of  London  is  in  force^ 
and  on  the  understanding  that  the  requirement  in  Article  50 
of  the  Declaration  that  "before  the  vessel  is  destroyed  all  per- 
sons on  board  must  be  placed  in  safety"  is  not  satisfied  by  merely 
giving  them  an  opportunity  to  escape  in  lifeboats,  the  Gov- 
ernment of  the  United  States  is  willing,  pending  the  arbitral 
award  in  this  case,  to  accept  the  Declaration  of  London  as  the 
rule  governing  the  conduct  of  the  German  Government  in  rela- 
tion to  the  treatment  of  American  vessels  carrying  cargoes  of 
absolute  contraband,^ 

And  to  this  concession,  for  such  it  was,  the  Imperial  German  Govern- 
ment replied  as  follows  on  November  29,  1915: 

The  German  Government  quite  shares  the  view  of  the  Ameri- 
can Government  that  all  possible  care  must  be  taken  for  the 
security  of  the  crew  and  passengers  of  a  vessel  to  be  sunk.  Con- 
sequently, the  persons  found  on  board  of  a  vessel  may  not  be 
ordered  into  her  lifeboats  except  when  the  general  conditions, 
that  is  to  say,  the  weather,  the  condition  of  the  sea,  and  the 
neighborhood  of  the  coasts  afford  absolute  certainty  that  the 
boats  will  reach  the  nearest  port.  For  the  rest  the  German  Gov- 
ernment begs  to  point  out  that  in  cases  where  German  naval 
forces  have  sunk  neutral  vessels  for  carrying  contraband,  no  loss 
of  life  has  yet  occurred.^ 

Here  the  Frye  case  apparently  ended,  for  no  further  correspond- 
ence has  been  issued  by  either  Government  concerning  it.  The  net 
result  of  it  all  seems  to  be  that  the  rights  and  duties  of  the  United 
States  and  of  Germany  in  regard  to  this  matter  were  defined  by  the 
treaty  of  1828  between  Prussia  and  the  United  States  reviving 
Article  13  of  the  treaty  of  1799;  that  notwithstanding  the  express 
provision  of  this  treaty  that  a  ship  carrying  material  supposed  to  be 
contraband  should  continue  on  its  voyage  unmolested,  upon  an  offer 
to  deliver  out  the  articles  supposed  to  be  contraband,  the  Imperial 
German  Government  claimed  the  right  to  destroy  the  vessel  and  to 
satisfy  the  treaty  by  the  payment  of  damages;  that  the  matter  of 
damages  was  to  be  settled  not  through  diplomatic  channels  but  by  a 
commission  of  two  experts;  that  if  the  experts  disagreed  an  umpire 
was  to  be  appointed,  provided  he  passed  merely  upon  the  question  of 
assessment;  that  questions  of  principle  should  be  adjusted  through 
diplomatic  channels;  that  the  difference  concerning  the  interpreta- 

'  Official  text,  American  Journal  of  International  Law,  Special  Supplement,. 
October,  1916,  p.  348. 
^  Ihid.,  p.  351. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      333 

tion  of  the  treaty  between  the  two  governments  should  be  submitted 
to  arbitration;  that  the  discussion  of  the  form  of  arbitration  should 
take  place  in  Berlin  and  that  it  should  be  according  to  Article  38 
of  the  pacific  settlement  convention;  and  that,  pending  the  award, 
a  modus  vivendi  should  be  adopted  which  would  prevent  the  recur- 
rence of  the  incident  according  to  a  form  of  procedure  consistent 
with  the  Declaration  of  London  but  inconsistent  with  the  treaty 
between  Prussia  and  the  United  States. 

The  state  of  mind  in  which  the  Imperial  German  Government 
approach  the  settlement  of  the  Frye  case  may  be  judged  by  the 
fact  that  it  refused  the  request  of  the  American  Ambassador,  acting 
under  instructions  from  the  Department  of  State,  to  furnish  a  copy 
of  the  judgment  delivered  by  the  prize  court  at  Hamburg  in  that 
case;'  and  the  futility  of  an  attempt  to  settle  the  disputes  between 
the  United  States  and  Germany  by  arbitration  is  made  apparent 
by  the  action  of  the  Imperial  German  Government,  which  not  only 
refused  to  furnish  a  copy  of  the  decision  of  its  prize  court — which 
might  have  aided  the  United  States  in  the  presentation  of  its  claim — 
but  also  to  carry  out  the  terms  of  a  present  agreement  to  arbitrate  the 
case  of  The  William  P.  Frye. 

Instead  of  concluding  from  this  case  the  extent  to  which  the  pledged 
word  of  the  Imperial  German  Government  can  be  accepted,  some 
extracts  from  documents  bearing  upon  a  question  previously  discussed 
will  be  quoted. 

In  July,  1870,  when  it  became  known  that  the  Prince  of  Hohen- 
zollern  had  been  offered  and  had  accepted  the  throne  of  Spain,  the 
French  Charge  d 'Affaires  inquired  of  the  Prussian  Foreign  Office, 
where  he  was  told  that  the  Prussian  Government  knew  absolutely 
nothing  about  the  matter  (ignorait  absolument  cette  affaire). 

This  statement  was  subsequently  confirmed  by  a  circular  to  the 
Prussian  diplomatic  agents  containing  the  following  assurance: 

The  North-German  Government  declared  that  the  matter  had 
nothing  to  do  with  Prussia.  .  .  .  The  Prussian  Government  has 
always  considered  and  treated  this  affair  as  one  in  which  Spain 
and  the  selected  candidate  are  alone  concerned,  as  the  respect 
due  to  the  rights  and  independence  of  the  Spanish  people  natu 
rally  requires.^ 

The  statement  contained  in  this  circular  was  further  confirmed  by 

*  MSS.,  Department  of  State. 

^  British  and  Foreign  State  Papers,  vol.  60,  pp.  796,  897,  907,  928.  See  letter 
of  J.  W.  Headlam,  The  Times  (London),  August  3,  1917. 


334        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

the  King  of  Prussia  himself,  who  said  in  a  conversation  to  Benedetti, 
the  French  Ambassador: 

The  negotiations  opened  on  the  subject  had  been  pursued  be- 
tween the  Spanish  Government  and  the  Prince  Hohenzollern ;  the 
Prussian  Government  has  not  only  been  unconnected  with  them, 
it  has  been  ignorant  of  them  (Le  gouvernement  prussien  n'y  est 
pas  seulement  reste  etranger,  il  les  a  ignorees).  The  King  him- 
self has  avoided  associating  himself  with  them.  .  .  .  The  King 
has  been  informed  of  the  determination  of  the  Prince ;  the  King 
has  (in  this  matter)  neither  called  together  nor  consulted  the 
Council  of  Ministers ;  the  Prussian  Government  could  not  be  inter- 
pellated on  a  matter  which  it  has  not  known  and  with  which 
it  had  no  more  to  do  than  any  other  European  Cabinet.' 

In  1897  the  King  of  Roumania,  the  brother  of  Prince  Leopold  of 
Hohenzollern,  who  had  been  offered  and  had  refused  the  Spanish 
throne,  gave  the  full  details  of  the  transaction,  showing  that  the  Prus- 
sian Government,  instead  of  being  ignorant  of  the  candidacy,  had  pro- 
posed it,  supported  it.  and  forced  it  upon  the  Hohenzollern  prince, 
and  that  the  candidacy  had  been  formally  approved  at  a  meeting  of 
the  Prussian  Ministers  specially  called  to  consider  the  matter. 

The  following  extracts  from  the  memoirs  of  King  Charles  of 
Roumania,  written  in  German  and  published  in  Germany  in  1897,  are 
quoted  without  comment: 

Count  Bismarck  is  pleading  with  great  warmth  for  the 
acceptance  of  the  throne  by  the  hereditary  prince :  in  a  memorial 
to  King  William  he  emphasizes  the  great  importance,  which  the 
calling  of  the  Prince  of  Hohenzollern  to  the  Spanish  throne  would 
have  for  Germany;  it  would  be  of  incalculable  political  value  to 
have  a  friendly  country  in  the  rear  of  France.^ 

Prince  Karl  Anton  and  his  son  Leopold  went  to  Berlin  to  confei' 
with  the  authorities  as  to  the  candidacy  of  the  young  man  and  on 
March  20,  1870,  that  is,  five  days  after  the  event,  he  thus  wrote  to 
his  son  Karl  in  Roumania,  who  was  naturally  interested  in  the  for- 
tunes of  the  family  and  of  the  younger  brother: 

On  the  fifteenth  there  was  a  very  important  and  interesting 
consultation  here,  under  the  presidency  of  the  king,  and  at 
which  the  crown  prince,  both  of  us   [Prince  Karl  Anton,  the 

*  Benedetti,  Ma  Mission  en  Pmsse,  2d  ed.    (1871),  p.  331. 
2  Aus  dem  Lehen  Konig  Karls  von  Rumiinien,  Aufzeichnungen  eines  Augen- 
zeugen   (Stuttgart,  1897,  2  vols.),  vol.  2,  p.  68. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     335 

father,  and  Leopold,  the  son],  Bismarck,  Roon,  Moltke,  Sehleinitz, 
Thile,  and  Delbriick  were  present.  The  unanimous  decision  of 
these  advisers  was  in  favor  of  acceptance,  as  the  patriotic  duty 
of  a  Prussian.' 

Count  Bismarck  has  repeatedly  and  most  decisively  declared 
that  the  acceptance  of  the  Spanish  crown  by  one  of  the  princes  of 
HohenzoUern  was  a  political  necessity.^ 

*  Aus  dem  Lehen  Konig  Karls  von  Rumdnien,  Aufzeichnungen  eines  Augen- 
seugen  (Stuttgart,  1897,  2  vols.),  vol.  2,  p.  72. 
2  Ibid.,  p.  93. 


CHAPTER   XIX 
THE  FEEEDOM  OF  THE   SEAS 

The  President,  in  his  address  of  April  2,  1917,  stated  that  Ger- 
many was  running  amuck,  and  in  view  of  this  fact,  which  was  only 
too  true,  the  United  States  could  not  very  well  appear  before  pos- 
terity as  the  champion  of  the  freedom  of  the  seas  if  it  stood  aside  and 
allowed  the  Imperial  German  Government  to  continue  to  run  amuck 
on  the  high  seas.  As  President  Wilson  had  advocated  the  freedom  of 
the  seas  when  his  country  was  neutral — and  it  is  to  be  hoped  that  he 
will  stand  for  it  as  steadfastly  when  his  country  is  belligerent — and 
as  the  Imperial  German  Government  has  repeatedly  proclaimed  the 
freedom  of  the  seas  and  has  declared  in  the  official  correspondence 
with  the  United  States  that  its  actions  are  conceived  and  executed  in 
behalf  of  the  freedom  of  the  seas,  it  becomes  material  to  consider  in 
what  sense  this  phrase  can  be  used  to  condemn  and  to  sustain  one  and 
the  same  action. 

It  is  well  to  define  the  term  *'high  seas"  in  order  that  we  may 
have  a  firm  foundation  upon  which  to  build ;  otherwise,  with  the  best 
of  intentions,  we  are  liable  to  fall  into  the  confusion  which  we  criticise 
in  others;  and  it  seems  peculiarly  appropriate,  where  interests  are 
involved  and  passions  aroused,  to  leave  the  atmosphere  of  the  chan- 
celleries and  to  take  refuge  in  the  cool  and  the  calm  of  courts  of 
justice.  For  this  reason,  a  decision  of  a  court  of  justice  will  be 
invoked. 

The  circumstances  surrounding  the  case  are  interesting  in  them- 
selves and  calculated  to  show  that  the  Court  was  obliged,  by  the  very 
terms  of  the  act  giving  it  jurisdiction,  to  define  the  "high  seas"  in 
the  sense  in  which  that  phrase  is  used  in  international  law.  The 
origin  of  the  Court  was  peculiarly  international.  The  United  States 
alleged  that  Great  Britain  had  been  unneutral  in  the  American  Civil 
"War,  and  that,  because  of  Great  Britain's  failure  to  comply  with  the 
requirements  of  neutrality,  especially  in  the  matter  of  Confederate 
cruisers,  built,  fitted  out,  and  equipped  in  Great  Britain  and  per- 
mitted to  make  of  British  ports  the  base  of  hostile  operations,  the 
United  States  and  its  citizens  had  suffered  damage.    As  the  result 

336 


A  SURVEY  OF  INTERNATIONAL  RELATIONS        337 

of  a  bitter  controversy,  the  questions  involved  were  submitted  to 
arbitration  by  a  treaty  between  the  two  countries,  concluded  on 
May  8,  1871,  and  commonly  called  the  Treaty  of  Washington. 

The  first  article  states  in  the  portion  material  to  the  matter  in 
hand  that  differences  existed  between  the  two  Governments  growing 
out  of  acts  committed  by  various  Confederate  vessels,  of  which  TJie 
Alabama  was  the  chief;  that  the  British  Government  in  a  '' friendly 
spirit"  expressed  regret  for  the  escape  "under  whatever  circum- 
stances" of  The  Alabama  and  other  vessels  from  British  ports  and  for 
the  depredations  committed  by  those  vessels ;  that  to  adjust  those  dif- 
ferences and  speedily  to  settle  all  claims  growing  out  of  acts  com- 
mitted by  The  Alabama  and  other  vessels,  generally  known  as  the 
Alabama  Claims,  the  United  States  and  Great  Britain  agreed  to  refer 
such  claims  to  a  tribunal  of  arbitration  composed  of  five  arbitrators^ 
one  to  be  appointed  by  the  United  States,  one  by  Great  Britain,  one 
by  Italy,  one  by  Switzerland,  and  one  by  Brazil.  The  second  article 
provided  that  the  arbitrators  were  to  meet  at  Geneva,  and,  therefore, 
the  tribunal  and  the  award  are  known  respectively  as  the  Geneva 
Tribunal  and  the  Geneva  Award,  The  sixth  article  provided  that  the 
arbitrators  should  be  governed  by  three  rules  generally  known  as  the 
three  rules  of  Washington,^  "which  are  agreed  upon  by  the  high  con- 
tracting parties  as  rules  to  be  taken  as  applicable  to  the  case,  and  by 
such  principles  of  international  law  not  inconsistent  therewith  as  the 
arbitrators  shall  determine  to  have  been  applicable  to  the  case. ' ' 

Article  7  provided,  among  other  things,  that  the  tribunal  should 
consider  each  of  the  cases  separately  in  accordance  with  the  three  rules 
and  the  principles  of  international  law  not  inconsistent  with  them, 
and  that  it  should,  if  it  found  Great  Britain  at  fault  and  if  it  thought 

1  The  following  is  the  text  of  the  three  rules  of  Washington : 

A  neutral  Government  is  bound — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or  equip- 
ping, within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable  ground 
to  believe  is  intended  to  cruise  or  to  carry  on  war  against  a  Power  with 
which  it  is  at  peace;  and  also  to  use  like  diligence  to  prevent  the  depar- 
ture from  its  jurisdiction  of  any  vessel  intended  to  cruise  or  carry  on  war 
as  above,  such  vessel  having  been  specially  adapted,  in  whole  or  in  part^ 
within  such  jurisdiction,  to  warlike  use. 

Secondly,  not  to  permit  or  suffer  either  belligerent  to  make  use  of  its 
ports  or  waters  as  the  base  of  naval  operations  against  the  other,  or  for 
the  purpose  of  the  renewal  or  augmentation  of  military  supplies  or  arms, 
or  the  recruitment  of  men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  w^aters,  and,, 
as  to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties.  (Malloy,  Treaties,  etc.,  between  the  United 
States  and  Foreign  Powers,  vol.  1,  p.  703.) 


338        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

it  proper,  award  a  sum  in  gross  to  be  paid  by  Great  Britain  to  the 
United  States  for  all  the  claims  referred  to  it. 

It  is  sufficient  for  present  purposes  to  state  that  the  tribunal  met  at 
Geneva  in  1872,  that  it  decided  that  in  some  respects  the  conduct  of 
Great  Britain  was  in  conflict  with  the  three  rules  of  Washington  or  the 
principles  of  international  law  not  inconsistent  therewith  and  appli- 
cable to  the  case,  and  that  "The  tribunal,"  to  quote  the  language  of  the 
award, '  *  making  use  of  the  authority  conferred  upon  it  by  Article  VII ' 
of  the  said  treaty,  by  a  majority  of  four  voices  to  one  awards  to  the 
United  States  a  sum  of  $15,500,000  in  gold  as  the  indemnity  to  be  paid 
by  Great  Britain  to  the  United  States,  for  the  satisfaction  of  all  the 
claims  referred  to  the  consideration  of  the  tribunal,  conformably  to 
the  provisions  contained  in  Article  VII  of  the  aforesaid  treaty." 
Great  Britain  paid  and  the  United  States  accepted  this  award  in  full 
satisfaction  of  the  claims  submitted  to  arbitration  and,  assuming 
liability  to  satisfy  the  individual  claimants  out  of  this  fund,  created 
a  so-called  Alabama  Court  of  Claims  by  an  Act  of  Congress  of  June 
23,  1874,  to  which  the  claimants  were  to  present  their  claims,  with  the 
necessary  proofs,  in  order  that  they  might  be  judicially  passed  upon 
and  determined,  and  the  amounts  found  justly  due  them  paid  out  of 
the  fund. 

An  Alabama  Court  of  Claims  was  created  by  Act  of  Congress  of 
June  5,  1882,  to  consider  two  classes  of  the  so-called  Alabama  claims, 
and  in  Section  5  of  the  act  it  is  stated: 

That  the  first  class  shall  be  for  claims  directly  resulting  from 
damage  done  on  the  high  seas  by  Confederate  cruisers  during 
the  late  rebellion,  including  vessels  and  cargoes  attacked  on  the 
high  seas,  although  the  loss  or  damage  occurred  within  four  miles 
of  the  shore    .     .     .^ 

It  will  be  observed  that  each  of  these  tribunals  was  of  limited 
jurisdiction,  and  that  the  second  Court  of  Alabama  Claims  was 
limited  in  its  jurisdiction  to  ''claims  directly  resulting  from  damage 
done  upon  the  high  seas."  It  was  necessary,  therefore,  for  the  judges 
composing  it  to  determine  the  sense  in  which  the  phrase  "high  seas" 
was  used.  The  question,  therefore,  met  the  judges  of  the  Court  upon 
the  threshold  and  they  were  forced  to  decide  it  before  assuming  juris- 
diction of  any  claim ;  for  if  the  damage  did  not  occur  upon  the  high 
seas,  the  judgment  or  award  of  the  Court  would  be  null  and  void  and 
without  effect. 

'  Malloy,  Treaties,  etc.,  between  the  United  States  and  Foreign  Powers,  p.  703. 
2  22  Statutes  at  Large,  p.  98. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      339 

The  ease  to  which  reference  has  been  made  is  that  of  RicJi  v.  The 
United  States,  decided  in  1884  by  the  Second  Court  of  Alabama  Claims 
and  is  of  importance  as  it  discusses  in  principle,  unembarrassed  by 
legislative  act  or  judicial  decision,  the  meaning  to  be  ascribed  to  the 
term  "high  seas"  standing  alone  and  without  qualifying  expression. 
To  the  English-speaking  peoples  it  has  the  additional  advantage  of 
having  been  considered  by  counsel  for  government  and  counsel  for 
claimants  as  a  case  of  first  impression,  and  it  was  argued  and  decided 
as  such.  Because  of  these  two  facts,  and  because  also  of  its  importance 
to  the  subject  at  hand,  the  opinion  in  this  case,  which  is  not  so  well 
known  as  it  deserves  to  be,  will  be  laid  under  requisition.  The  facts 
of  the  case  were  simple  and  are  thus  stated  by  Judge  Harlan,  who 
delivered  the  opinion  of  the  Court: 

The  claimants  in  this  case  represent  that  they  were  owners  of 
one-fourth  part  of  the  American  ship  John  H.  Jarvis,  and  its 
cargo,  captured  May  16,  1861,  on  the  high  seas,  near  the  mouth 
of  the  Mississippi  river,  by  the  Confederate  cruiser  Music,  and 
pray  judgment  for  the  value  of  their  said  interest  in  the  property 
so  lost  to  them.^ 

On  the  question  of  the  meaning  to  be  given  to  the  phrase  "high 
seas"  contained  in  the  statute,  and  the  reasons  which  led  the  Court  to 
its  conclusion  as  to  the  meaning  of  the  phrase,  Judge  Harlan  said, 
on  behalf  of  the  Court: 

The  decision  of  the  question  thus  raised  must  depend  on  the 
meaning  which  Congress  intended  should  be  given  by  the  Court  to 
the  phrase  or  compound  word  "high-seas,"  as  used  in  this  statute.^ 

After  stating  that  in  admiralty  law  the  statutes  interpret  the  high 
seas  as  meaning  "waters  of  the  ocean  from  shore  to  shore  to  low- 
water  mark,"  the  learned  judge  thus  continued  his  examination: 

On  account  of  the  imperfection  of  human  language  the  mean- 
ing of  words  must  be  construed  by  the  subject-matter  to  which 
they  apply.  "High  seas"  is  not  an  exception.  As  used  in  litera- 
ture, and  by  writers  on  elementary  law,  it  does  not  always  mean 
the  waters  of  the  ocean  from  shore  to  shore  [as  in  the  case  of 
admiralty  proceedings]. 

It  is  a  settled  rule  of  interpretation,  also,  that  words  found 

^  Opinions  of  the  Court  of  Commissioners  of  Alabama  Claims,  November,  1884. 
Compiled  by  J.  F.  Manning.     (Boston,  Smith  and  Porter,  1884),  p.  48. 
2/6td.,  p.  50. 


340        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

in  a  statute  should  retain  their  usual  meaning,  if  that  is  prac- 
ticable, within  the  meaning  of  the  act.  It  may  therefore  be 
proper  to  endeavor  to  ascertain  the  usual  literal  meaning  of  this 
term,  composed  as  it  is  of  two  primary  words — the  descriptive 
adjective  "high,"  and  the  substantive  "seas." 

"Sea,"  as  originally  used,  meant  a  body  of  water  smaller  than 
the  ocean,  usually  connected  with  the  ocean,  but  sometimes  a  body 
of  water  entirely  surrounded  by  land.  But  its  meaning  has 
gradually  changed,  as  used  by  the  English-speaking  people,  until, 
it  has  come  to  mean  the  ocean  more  frequently  than  a  smaller  in- 
land body  of  water.  And,  in  fact,  the  two  words,  "ocean"  and 
"sea,"  or  "seas,"  are  used  interchangeably  as  synonymous. 
"Sea,"  being  the  more  modest  word,  is  probably  more  frequently 
used  in  descriptive  and  narrative  language,  and  "ocean"  pre- 
ferred when  the  heroic  style  of  expression  is  adopted.  Hence, 
'  *  sea-shore ' '  now  usually  means  the  ocean  shore ;  "  at  sea ' '  out  on 
the  ocean;  "seaman,"  one  who  navigates  the  ocean  as  well  as 
interior  waters;  so  that  "sea"  or  "seas,"  as  now  generally  used, 
means  the  open  waters  of  the  ocean  from  shore  to  shore ;  therefore 
the  term  "high-seas"  must  mean,  literally,  the  waters  of  the 
ocean  in  some  different  sense,  indicated  by  the  prefix  "high," 
which  was  probably  adopted  as  descriptive  of  the  apparent  eleva- 
tion of  its  surface  towards  the  horizon  when  looked  at  from  the 
shore.  And  the  term  "high-seas"  is  so  used  in  descriptive 
geography  and  narrative  as  meaning  the  sea  at  a  distance  from 
the  shore,  and  interchangeable  with  the  term  ' '  deep  seas. ' '  ^ 

After  appealing  to  the  lexicographer  as  to  the  meaning  of  the 
word  "high"  and  finding  it  to  mean  "elevated  from  any  starting 
point  for  measurement,  as  a  line  or  surface,"  and  coming  to  the  con- 
clusion that  the  "high  seas,"  therefore,  meant  the  sea  from  beyond 
a  given  line,  the  Court  made  the  following  application  of  the  definition : 

For  the  purpose  of  defining  the  territorial  jurisdiction  of  a 
nation,  the  starting  point  is  one  marine  league,  or  about  four 
statute  English  miles  from  the  shore.  Hence  the  words  "high 
seas,"  when  used  with  such  reference,  must  mean  the  waters  of 
the  ocean  exterior  to  such  boundary ;  and  the  most  casual  exami- 
nation of  standard  works  on  international  law  will  furnish  abun- 
dant proof  that  it  is  constantly  so  used  in  defining  the  rights 
and  duties  of  neutrals  and  belligerents  on  the  "high-seas"  in 
contradistinction  to  their  rights,  duties,  and  privileges  within  a 
marine  league  of  a  neutral  shore.^ 

The  Court  next  appealed  to  the  international  lawyer,  choosing  for 
this  purpose  Chancellor  Kent,  and  wisely,  because  he  was  not  only  a 

'  Manning,  Opinions,  Court  of  Commissioners  of  Alabama  Claims,  November, 
1884,  pp.  50-51. 
2  Ibid.,  p.  51. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      341 

lawyer  by  profession  and  one  of  the  glories  of  the  American  bench, 
but  also  the  author  of  a  brief  survey  of  the  law  of  Nations  which  com- 
petent authorities  have  been  pleased  to  consider  as  the  best  in  the 
language.^  To  the  appeal  Kent  responded  that  "high  seas"  meant 
* '  the  ocean  without  the  boundary  of  any  country ;  also  the  uninclosed 
waters  of  the  ocean  which  are  without  the  limits  of  the  low-water 
mark."  Armed  with  the  authority  of  the  lexicographer  and  of  the 
international  lawyer,  the  Court  proceeded. 

And  this  double  meaning  appears  to  be  in  harmony  with  the 
more  modern  use  of  the  term ;  that  is  to  say,  it  means  either  the 
waters  of  the  ocean  from  shore  to  shore,  or  the  waters  of  the  ocean 
bounded  by  a  line  drawn  one  marine  league  from  the  shore,  that 
being  the  territorial  jurisdictional  boundary  of  a  nation,  depend- 
ing on  the  subject-matter  to  which  it  is  applied.  In  defining 
the  jurisdiction  of  admiralty  courts  "high-seas"  means  the  waters 
of  the  ocean  from  shore  to  shore  at  low-water  mark.  In  defining 
the  rights  and  duties  and  privileges  of  neutrals  and  belligerents 
"high-seas"  means  the  ocean  exterior  to  the  league  limit  from  the 
shore.^ 

After  having  reached  this  conclusion,  based  upon  the  nature  of  the 
thing  and  the  views  of  Nations  as  drawn  from  their  practice,  the 
learned  judge  asked  in  what  sense  the  Congress  used  the  term  "in  the 
statute"  and  correctly  answered  the  question  just  put  by  stating  that 

that  must  be  determined  from  a  consideration  of  the  language 
used  and  the  subject-matter  treated. 

The  Court  first  considered  the  subject  which  the  legislature  had  ia 
mind  and  on  this  point  the  judge  said : 

The  subject  referred  to  is  the  destruction  of  American  mer- 
chant ships  and  cargoes  on  the  high-seas  by  Confederate  cruisers. 

'  Thus  Sir  William  Vernon  Harcourt  said  in  the  Letters  which  that  distin- 
guished lawyer  and  statesman  contributed  under  the  pseudonym  Historicus  to  the 
London  Times: 

"The  lectures  of  Chancellor  Kent  at  the  commencement  of  the  Com- 

.  mentaries  are  a  perfect  specimen  of  judicial  exposition.     The  '  Elements  of 

International  Law,'  by  Mr.  Wheaton,  slight  as  they  are,  nevertheless  present, 

on  the  whole,  next  to  that  of  Kent,  the  best  general  attempt  which  has  yet 

been  made  at  a  discussion  of  these  questions."     And  again :    "  Permit  me, 

while  I  am  warning  your  readers  against  false  lights,  to  refer  them  to  a 

guide  who  will  never  lead  them  astray — to  the  greatest  jurist  whom  this  age 

has  produced — I  mean  the  American  Chancellor  Kent.     Of  his  writings  it 

may  safely  be  said  that  they  are  never  wrong."     {Letters  of  Historicus  on 

Some  Questions  of  International  Law;  London;   Macmillan,  1863,  p.  129.) 

2  Manning,  Opinions,  Court  of  Commissioners  of  Alabama  Claims,  November, 

1884,  pp.  51-52. 


342        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

The  so-called  Confederate  States  had  been  recognized  by  the  lead- 
ing States  of  Europe  as  belligerents,  which  enabled  their  armed 
cruisers  to  make  legal  captures  on  the  high-seas,  but  not  within 
the  jurisdictional  waters  of  any  neutral  State.  As  to  them  the 
"high-seas"  meant  the  waters  of  the  ocean  outside  the  marine 
league  limit  from  the  shore.  Of  course,  captures  thus  made  within 
the  marine  league  of  the  shore  at  low-water  mark  of  the  other 
belligerents  were  equally  lawful,  and  so  would  have  been  such 
captures  made  between  low-water  mark  and  high-water  mark,  or 
on  the  internal  waters  of  the  other  belligerent,  and,  likewise  in 
this  case,  enemies'  property  captured  within  the  marine  league 
of  the  shores  and  on  the  internal  waters  of  the  Confederate  States. 
And  as  between  the  two  belligerent  captures  made  on  land  were 
equally  lawful  with  captures  made  on  the  water.  Therefore,  the 
question  of  the  terminal  boundaries  of  the  "high-seas,"  as  in- 
tended by  Congress  in  this  act,  cannot  be  settled  by  the  question 
of  the  legality  of  the  capture.^ 

Inasmuch  as  this  line  of  approach  was  not  decisive,  the  Cou-*t 
looked  to  the  facts  of  the  case  and  attendant  circumstances.    Thus : 

But  the  Court  may  derive  some  aid  in  this  respect  from  the 
consideration  of  other  facts  and  circumstances  relating  to  the 
subject-matter.  Within  the  marine  league  from  a  neutral  shore 
the  property  of  citizens  of  the  United  States  was  under  the  pro- 
tection of  the  neutral  government,  and  not  legally  subject  to 
capture  by  the  belligerent  cruisers,  and  within  the  marine  league 
of  the  shore  of  the  United  States  and  on  its  interior  waters  it  was 
under  the  protection  of  the  guns,  shore  batteries,  harbor  defenses, 
and  land  forces  of  the  United  States,  and  consequently  less  liable 
to  capture  by  belligerent  ships  of  the  public  enemy ;  and  the  en- 
trance of  merchant  ships  for  the  purpose  of  trade  into  the  harbors 
and  on  the  interior  waters  of  the  Confederate  States  had  been 
prohibited  by  the  United  States  before  the  sailing  of  any  Con- 
federate cruiser.  Hence  the  presence  of  a  merchant  ship  of  the 
United  States  within  the  marine  league  of  the  Confederate  coast 
was  presumably  illegal,  being  in  defiance  of  the  laws  of  its 
sovereign. 

From  this  condition  of  facts  the  conclusion  may  safely  be 
drawn  by  the  Court  that  Congress  probably  intended  to  dis- 
tinguish between  the  class  of  sufferers  whose  property  was  de- 
stroyed within  a  marine  league  and  also  on  the  interior  waters 
of  the  United  States  and  of  the  Confederate  States,  to  exclude 
them  from  the  beneficial  provisions  of  this  statute,  and  to  provide 
for  them,  if  deemed  advisable,  by  future  legislation.^ 

'  Manning,  Opinions,  Court  of  Commissioners  of  Alabama  Claims,  November, 
1884,  p.  53. 

^Ibid.,  pp.  53-54. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      343 

The  learned  judge  then  took  up  the  language  of  the  act,  saying  on  this 
point : 

In  this  view  of  the  language  of  the  statute,  "That  the  first 
class  shall  be  for  claims  directly  resulting  from  damage  done  on 
the  high-seas  by  Confederate  cruisers  during  the  late  rebellion, 
including  vessels  and  cargoes  attacked  on  the  high-seas,  although 
the  loss  or  damage  occurred  within  four  miles  of  the  shore," 
is  clear  and  explicit — free  from  all  ambiguity — nothing  appear- 
ing as  surplusage  or  as  redundancy,  and  nothing  in  conflict  with 
any  other  part  of  the  statute.  And  in  this  view  the  enlarging 
clause,  "including  vessels  and  cargoes  attacked  on  the  high-seas, 
although  the  loss  or  damage  occurred  within  four  miles  of  the 
shore,"  does  increase  the  scope  of  the  beneficial  provisions  of 
the  act,  and  is  also  in  harmony  with  the  preceding  clause  to  which 
it  is  attached.  And,  moreover,  can  be  equally  applied  on  neutral 
as  well  as  on  belligerent  shores/ 

And,  as  the  result  of  the  consideration  of  the  subject,  subject-matter, 
facts,  attendant  circumstances,  and  the  language  of  the  statute, 

The  Court  therefore  concludes  that  Congress  intended  to  adopt, 
for  the  purposes  of  this  act,  as  the  exterior  boundaries  of  the 
"high-seas,"  a  line  four  miles  seaward  from  the  shore.^ 

In  the  case  of  United  States  v.  Rodger s  (150  U.  S.  249),  decided 
by  the  Supreme  Court  of  the  United  States  in  1893,  the  Court  had 
occasion  to  consider  whether  large  bodies  of  water  other  than  the  open 

^  Manning,  Opinions,  Court  of  Commissioners  of  Alabama  Claims,  November, 
1884,  p.  54. 

In  the  case  of  The  Alleganean,  an  American  merchantman  destroyed  in  the 
Chesapeake  Bay  on  its  voyage  from  Baltimore  to  London  on  October  22,  1862, 
by  tenders  from  the  Confederate  cruiser  Patrick  Henry,  manned  by  duly  com- 
missioned officers  thereof,  the  same  Court  had  occasion  to  reconsider  the 
meaning  of  the  "  high  seas  "  in  international  law,  invoked  by  national  or  local 
statute.    And  on  this  point,  Judge  Draper,  speaking  for  the  Court,  said: 

The  term  "  high  seas "  as  used  by  legislative  bodies,  the  courts,  and 
text-writers,  has  been  construed  to  express  a  widely  different  meaning. 
As  used  to  define  the  jurisdiction  of  admiralty  courts,  it  is  held  to  mean 
the  waters  of  the  ocean  exterior  to  low-water  mark.  As  used  in  inter- 
national law,  to  fix  the  limits  of  the  open  ocean,  upon  which  all  peoples 
possess  common  rights,  the  "  great  highway  of  Nations,"  it  has  been  held 
to  mean  only  so  much  of  the  ocean  as  is  exterior  to  a  line  running 
parallel  with  the  shore,  and  some  distance  therefrom,  commonly  such  dis- 
tance as  can  be  defended  by  artillery  upon  the  shore,  and,  therefore,  a 
cannon-shot  or  a  marine  league  (three  nautical  or  four  statute  miles). 
This  court,  after  very  able  argument  by  learned  counsel,  and  after  much 
deliberation,  has  held  that  the  term  was  used  in  the  act  of  June  5,  1882, 
in  the  same  sense  in  which  it  is  employed  by  the  international  law  writers. 
([Rich  V.  United  States],  Moore's  International  Arbitrations,  vol.  4,  p.  4335.) 

2  Manning,  Opinions,  Court  of  Commissioners  of  Alabama  Claims,  Novem- 
ber, 1884,  p.  55. 


344        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

ocean  and  the  smaller  bodies  of  water  connecting  them  could  be  con- 
sidered "high  seas"  in  the  sense  of  international  law,  and  on  this 
point,  Mr.  Justice  Field,  speaking  for  the  Court,  said: 

If  there  were  no  seas  other  than  the  ocean,  the  term  "high 
seas"  would  be  limited  to  the  open,  uninclosed  waters  of  the 
ocean.  But  as  there  are  other  seas  besides  the  ocean,  there  must 
be  high  seas  other  than  those  of  the  ocean.  A  large  commerce  is 
conducted  on  seas  other  than  the  ocean  and  the  English  seas,  and 
it  is  equally  necessary  to  distinguish  between  their  open  waters 
and  their  ports  and  havens,  and  to  provide  for  offences  on  vessels 
navigating  those  waters  and  for  collision  between  them.  The  term 
"high  seas"  does  not,  in  either  case,  indicate  any  separate  and 
distinct  body  of  water;  but  only  the  open  waters  of  the  sea  or 
ocean,  as  distinguished  from  ports  and  havens  and  waters  within 
narrow  headlands  on  the  coast.  This  distinction  was  observed  by 
Latin  writers  between  the  ports  and  havens  of  the  Mediterranean 
and  its  open  waters — the  latter  being  termed  the  high  seas. 

"Insula  portum 

Efficit  objectu  laterum,  quibus  omnis  ab  alto 
Frangitur,  inque  sinus  scindit  sese  unda  reductos. ' '  ^ 

After  having  considered  the  "high  seas"  as  synonymous  with  the 
open  uninclosed  waters  which  we  call  the  ocean,  Mr.  Justice  Field 
proceeded  to  point  out  that  large  bodies  of  waters,  such  as  the  Baltic 
and  the  Black  Sea,  are,  like  the  Mediterranean,  to  be  considered 
' '  high  seas. ' '      Thus,  he  said : 

In  that  sense  the  term  may  also  be  properly  used  in  reference 
to  the  open  waters  of  the  Baltic  and  the  Black  Sea,  both  of  which 
are  inland  seas,  finding  their  way  to  the  ocean  by  a  narrow  and 
distant  channel.  Indeed,  wherever  there  are  seas  in  fact,  free  to 
the  navigation  of  all  nations  and  people  on  their  borders,  their 
open  waters  outside  of  the  portion  "surrounded  or  inclosed  be- 
tween narrow  headlands  or  promontories, ' '  on  the  coast,  as  stated 
by  Mr.  Justice  Story,  or  "without  the  body  of  a  county,"  as 
declared  by  Sir  Matthew  Hale,  are  properly  characterized  as  high 
seas,  by  whatever  name  the  bodies  of  water  of  which  they  are  a 
part  may  be  designated.  Their  names  do  not  determine  their 
character.  There  are,  as  said  above,  high  seas  on  the  Mediter- 
ranean, (meaning  outside  of  the  inclosed  waters  along  its  coast), 
upon  which  the  principal  commerce  of  the  ancient  world  was  con- 
ducted and  its  great  naval  battles  fought.  To  hold  that  on  such 
seas  there  are  no  high  seas,  within  the  true  meaning  of  that  term, 
that  is,  no  open,  uninclosed  waters,  free  to  the  navigation  of  all  na- 
tions and  people  on  their  borders,  would  be  to  place  upon  that  term 

^The  ^neid,  Lib.  1,  v.  159-161;   150  U.  S.,  pp.  254-255. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      345 

a  narrow  and  contracted  meaning.  "We  prefer  to  use  it  in  its  true 
sense,  as  applicable  to  the  open,  uninclosed  waters  of  all  seas,  than 
to  adhere  to  the  common  meaning  of  the  term  two  centuries  ago, 
when  it  was  generally  limited  to  the  open  waters  of  the  ocean  and 
of  seas  surrounding  Great  Britain,  the  freedom  of  which  was 
then  the  principal  subject  of  discussion.  If  it  be  conceded,  as  we 
think  it  must  be,  that  the  open,  uninclosed  waters  of  the  Medi- 
terranean are  high  seas,  that  concession  is  a  sufficient  answer  to 
the  claim  that  the  high  seas  always  denote  the  open  waters  of  the 
ocean/ 

And  the  learned  judge,  likewise  speaking  for  the  Court,  pointed 
out  that  "high"  was  used  in  the  sense  of  "high"  way,  and  that  "high" 
way  in  that  sense  was  synonymous  with  "public"  way,  and  he  thus 
concluded  his  opinion  on  this  point: 

It  is  to  be  observed  also  that  the  term  "high"  in  one  of  its 
significations  is  used  to  denote  that  which  is  common,  open,  and 
public.  Thus  every  road  or  way  or  navigable  river  which  is  used 
freely  by  the  public  is  a  "high"  way.  So  a  large  body  of  navi- 
gable water  other  than  a  river,  which  is  of  an  extent  beyond 
the  measurement  of  one's  unaided  vision,  and  is  open  and  uncon- 
fined,  and  not  under  the  exclusive  control  of  any  one  nation  or 
people,  but  is  the  free  highway  of  adjoining  nations  or  people, 
must  fall  under  the  definition  of  "high  seas"  within  the  mean- 
ing of  the  statute.  We  may  as  appropriately  designate  the  open, 
uninclosed  waters  of  the  lakes  as  the  high  seas  of  the  lakes,  as  to 
designate  similar  waters  of  the  ocean  as  the  high  seas  of  the  ocean, 
or  similar  waters  of  the  Mediterranean  as  the  high  seas  of  the 
Mediterranean.^ 

It  has  been  thought  advisable  to  pay  more  than  passing  attention 
to  the  extent  and  limitation  of  the  "high  seas"  in  order  to  gain  a  clear 
conception  and  understanding  of  the  catch  phrase  "freedom  of  the 
seas,"  which,  if  it  be  not  one  and  the  same  as  "high  seas"  is  never- 
theless the  consequence  of  the  sense  in  which  "high  seas"  is  under- 
stood in  theory  and  applied  in  practice;  for  if  the  high  seas  be  a 
highway,  open  to  all  and  closed  to  none,  it  necessarily  follows  that 
no  nation  can  of  right  enjoy  exclusive  jurisdiction.  Under  these  cir- 
cumstances, there  is  a  right  of  all  and  a  special  privilege  of  none, 
and  the  right  of  all  to  and  upon  the  high  seas  is  a  right  to  use  them 
in  common.  Since  the  days  of  Bynkershoek  it  has  been  recognized 
by  common  consent  that  each  nation,  and  therefore  all  nations,  can 
lawfully  exercise  special  if  not  exclusive  jurisdiction  over  the  smaU. 

'  150  U.  S.,  p.  255.  2  Ibid.,  pp.  258-259. 


346        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

portions  of  the  high  seas  surrounding  their  territory  to  the  extent 
of  a  marine  league  from  low-water  mark.  Beyond  this  fringe  of  the 
seas,  indifferently  called  the  territorial  waters  or  marine  belt,  the  ocean 
is  not  subject  to  occupation,  and  because  it  is  not  subject  to  occupation 
it  is  not  the  property  of  any  one  Nation.  Because  the  waters 
adjacent  to  the  shore  might  be  commanded  from  the  shore  for  the 
space  of  a  marine  league,  in  1702,  Bynkershoek 's  dictum  met  with 
the  approval  of  the  Nations;  and  until  the  Nations  have  enlarged 
the  marine  belt  its  true  extent  is  three  marine  miles,  leaving  out  of 
consideration,  as  immaterial  to  the  present  purpose,  the  question  of 
bays  and  inlets,  regarding  which  there  appears  to  be  a  tendency  to 
recognize  the  jurisdiction  of  the  State  over  those  portions  of  the  high 
seas  extending  into  land  and  which  approximate,  but  do  not  exceed, 
ten  miles  in  width  at  the  opening.  Mr.  Justice  Field,  in  the  passage 
quoted  from  his  opinion  in  the  case  of  United  States  v.  Rodgers,  refers 
to  the  attempts  of  Spain  and  of  Portugal  to  ascribe  to  themselves  a 
property  in  the  ocean,  and  to  the  claims  of  Great  Britain  to  the 
waters  washing  its  shores  and  including  vast  portions  of  the  seas 
and  of  the  ocean  itself  beyond  its  shores.  These  pretensions  have 
one  by  one  dropped  by  the  wayside  and  have  left  no  traces  in  the 
waters  in  which  armed  forces  sought  to  make  them  good. 

An  attempt  has  been  made  from  time  to  time,  and  has  been  sup- 
ported by  writers  of  repute  within  the  past  few  years,  to  apply  to 
vessels  navigating  the  high  seas  the  dictum  of  Bynkershoek,  thus 
investing  them  with  jurisdiction  over  a  radius  of  three  marine  miles  or 
of  cannon-shot  over  the  waters  whereon  they  ride.  This  attempt 
which  would  be  entitled  to  serious  consideration  if  a  ship  were  to  be 
taken  literally  instead  of  figuratively  as  a  floating  portion  of  the 
country  whose  flag  it  flies,  is  fatal  to  the  freedom  of  the  seas  in  time 
of  peace  and  would  be  doubly  and  unbearably  so  in  time  of  war.  The 
contention,  for  it  has  never  got  beyond  this  stage,  has  always  been 
unsuccessful  and  has  hardly  caused  a  ripple  upon  the  surface.  It  was 
advanced  by  counsel  in  the  leading  case  of  The  Marianna  Flora,  tried 
in  the  Supreme  Court  of  the  United  States  in  1826,  and  it  was  thus 
stated  and  rejected  by  Mr.  Justice  Story  in  delivering  the  opinion 
of  the  Court: 

It  has  been  argued,  that  no  ship  has  a  right  to  approach  an- 
other at  sea;  and  that  every  ship  has  a  right  to  draw  round  her 
a  line  of  jurisdiction,  within  which  no  other  is  at  liberty  to  in- 
trude. In  short,  that  she  may  appropriate  so  much  of  the  ocean, 
as  she  may  deem  necessary  for  her  protection,  and  prevent  any 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      347 

nearer  approach.  This  doctrine  appears  to  us  novel,  and  is  not 
supported  by  any  authority.  It  goes  to  establish  upon  the  ocean 
a  territorial  jurisdiction,  like  that  which  is  claimed  by  all  nations, 
within  cannon-shot  of  their  shores,  in  virtue  of  their  general 
sovereignty.  But  the  latter  right  is  founded  upon  the  principle 
of  sovereign  and  permanent  appropriation,  and  has  never  been 
successfully  asserted  beyond  it.  Every  vessel,  undoubtedly,  has 
the  right  to  the  use  of  so  much  of  the  ocean  as  she  occupies,  and  as 
is  essential  to  her  own  movements.  Beyond  this,  no  exclusive  right 
has  ever  yet  been  recognized,  and  we  see  no  reason  for  admitting  its 
existence.  Merchant  ships  are  in  the  constant  habit  of  approach- 
ing each  other  on  the  ocean,  either  to  relieve  their  own  distress, 
to  procure  information,  or  to  ascertain  the  character  of  strangers ; 
and,  hitherto,  there  has  never  been  supposed  in  such  conduct  any 
breach  of  the  customary  observances,  or  of  the  strictest  principles 
of  the  law  of  nations.  In  respect  to  ships  of  war,  sailing,  as  in 
the  present  case,  under  the  authority  of  their  government,  to 
arrest  pirates,  and  other  public  offenders,  there  is  no  reason  why 
they  may  not  approach  any  vessels  descried  at  sea,  for  the  pur- 
pose of  ascertaining  their  real  characters.  Such  a  right  seems 
indispensable  for  the  fair  and  discreet  exercise  of  their  authority ; 
and  the  use  of  it  cannot  be  justly  deemed  indicative  of  any 
design  to  insult  or  injure  those  they  approach,  or  to  impede  them 
in  their  lawful  commerce.  On  the  other  hand,  it  is  as  clear,  that 
no  ship  is,  under  such  circumstances,  bound  to  lie  by,  or  wait  the 
approach  of  any  other  ship.  She  is  at  full  liberty  to  pursue  her 
voyage,  in  her  own  way,  and  to  use  all  necessary  precautions  to 
avoid  any  suspected  sinister  enterprise  or  hostile  attack.  She  has 
a  right  to  consult  her  own  safety ;  but,  at  the  same  time,  she  must 
take  care  not  to  violate  the  rights  of  others.  She  may  use  any 
precautions  dictated  by  the  prudence  or  fears  of  her  officers; 
either  as  to  delay,  or  the  progress  of  course  of  her  voyage ;  but 
she  is  not  at  liberty  to  inflict  injuries  upon  other  innocent  parties, 
simply  because  of  conjectural  dangers.  These  principles  seem  to 
us  the  natural  result  of  the  common  duties  and  rights  of  nations, 
navigating  the  ocean  in  time  of  peace.  Such  a  state  of  things 
carries  with  it  very  different  obligations  and  responsibilities  from 
those  which  belong  to  public  war,  and  is  not  to  be  confounded 
with  it.^ 

In  speaking  of  war  as  an  armed  contest  between  States  and  not 
between  the  subjects  or  citizens  thereof,  it  is  usual  to  cite  Rousseau,^ 

'  11   Wheaton   1,  pp.  41-42. 

2 "  War  is  not  a  relation  between  one  man  and  another,  but  is  a  relation 
between  one  state  and  another,  in  which  private  individuals  are  enemies  only 
by  accident,  not  as  men,  nor  even  as  citizens,  but  as  soldiers;  nor  as  members 
of  the  home  country,  but  as  its  defenders.  Finally,  any  state  can  have  for 
enemies  other  states  only,  and  not  any  member,  in  view  of  the  fact  that  as 
between  things  of  different  natures,  no  true  relation  can  be  established."  (Contrat 
Social,  1762,  liv.  i,  ch.  iv.) 


348        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

who  coined  the  phrase,  and  to  quote  the  language  of  Portalis,^  who 
introduced  it  into  the  practice  of  Nations,  So  in  the  case  of  the  free- 
dom of  the  seas,  it  is  advisable  to  state  the  meaning  of  the  phrase 
in  the  language  of  Grotius — whose  tractate,  if  it  did  not  first  pro- 
claim, nevertheless  succeeded  in  introducing  into  the  practice  of 
Nations  the  freedom  of  the  seas.  It  is  also  of  importance  to  note 
in  this  connection  that  this  little  book,  published  in  1608,  was  not 
an  academic  exercise,  but  that  it  was  the  brief  of  a  lawyer,  written 
in  a  prize  case  growing  out  of  the  capture  of  certain  Portuguese 
vessels  in  East  Indian  waters,  claimed  by  Portugal,  then  united 
with  Spain,  to  be  subject  to  its  jurisdiction  under  the  award  of 
Pope  Alexander  VI,  thus  closing  those  seas  to  Dutch  traders,  a  con- 
tention which  the  brave  little  Republic  of  the  Netherlands  refused  to 
admit,  and  whose  most  distinguished  son,  then  on  the  eve  of  his 
marvelous  career,  rejected  and  tore  into  shreds. 

In  these  days  when  our  ears  are  vexed  by  the  clash  of  arms  and  our 
eyes  are  blinded  by  passion  and  our  judgment  swayed  by  the  con- 
flicting claims  of  national  interest  and  of  international  right,  it  is  well 
to  turn  away  from  the  contentions  of  belligerents  and  neutrals  con- 
cerning the  freedom  of  the  seas  and  to  consider  the  dispute  regarding 
these  things  between  Holland  and  Portugal,  which,  three  hundred 
years  ago,  defined  the  freedom  of  the  seas  in  the  sense  in  which  the  law 
of  Nations  accepts  and  defines  it  today.  It  is  also  well  to  state  the  case 
fully  and  to  see  the  doctrine  grow,  as  it  were,  under  our  very  eyes ;  for 
by  so  doing  we  shall  understand  that  there  is  nothing  new  in  the  free- 
dom of  the  seas  except  its  violation,  that  the  argument  of  Grotius 
which  follows  in  its  entirety  and  largely  in  his  own  words,  has  lost 
little  of  its  timeliness,  that  is,  is  applicable  to  more  than  one  of  the 
belligerents  in  the  days  when  the  United  States  was  neutral  and 
that  more  than  one  Nation  could  justly  say,  Nomine  mutato  de  te, 
fabula  narratur. 

In  the  address  to  the  rulers  and  to  the  free  and  independent  Na- 

^  On  opening  the  French  Prize  Court  on  May  4,  1800,  M.  Portalis,  as  Com- 
missioner of  the  Government,  delivered  an  address  in  which  he  said: 

War  is  a  relation  of  state  to  state,  and  not  of  individual  to  individual. 
Between  two  or  more  belligerent  nations  the  private  persons  of  whom  those 
nations  are  composed  are  only  enemies  by  accident;  they  are  not  so  as 
men,  they  are  not  so  as  citizens,  they  are  so  only  as  soldiers.  (Quoted  from 
Hall's  International  Law,  4th  ed.,  pp.  68-69.) 

It  is  interesting  to  note  that  the  doctrine  proclaimed  by  Rousseau  and  pre- 
scribed by  Portalis  was  applied  in  the  case  of  Le  Hardy  contre  La  Voltigeante, 
decided  in  1801.  See  Pistoye  et  Duverdy,  Traite  des  Prises  Maritimes,  1859, 
tome  I,  pp.  321,  322. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      349 

tions  of  Christendom,  which  serves  as  an  introduction  to  the  tractate, 
Grotius  says : 

There  is  not  one  of  you  who  does  not  openly  proclaim  that 
every  man  is  entitled  to  manage  and  dispose  of  his  own  property ; 
there  is  not  one  of  you  who  does  not  insist  that  all  citizens  have 
equal  and  indiscriminate  right  to  use  rivers  and  public  places; 
not  one  of  you  who  does  not  defend  with  all  his  might  the  freedom 
of  travel  and  of  trade.^ 

Grotius  next  states  that,  while  the  King  of  the  universe  reserves  to 
himself  the  final  punishment,  slow  and  unseen  but  nevertheless  inevi- 
table, yet  he  appoints  to  intervene  in  human  affairs  two  judges  ' '  whom 
the  luckiest  of  sinners  does  not  escape,  namely.  Conscience,  or  the 
innate  estimation  of  oneself,  and  Public  Opinion,  or  the  estimation  of 
others. ' ' 

After  having  thus  laid  down  what  he  considers  fundamental  prin- 
ciples, he  next  puts  the  question,  which  he  answers  in  the  affirmative : 

If  it  be  thought  that  the  small  society  which  we  call  a  state 
cannot  exist  without  the  application  of  these  principles  (and  cer- 
tainly it  cannot),  why  will  not  those  same  principles  be  necessary 
to  uphold  the  social  structure  of  the  whole  human  race  and  to 
maintain  the  harmony  thereof  ? ' 

*  *  To  this  double  tribunal, ' '  he  says,  speaking  on  behalf  of  his  country, 
"we  bring  a  new  case,"  and  he  outlines,  within  the  compass  of  a 
paragraph,  the  extent  of  the  case : 

It  is  in  very  truth  no  petty  case  such  as  private  citizens  are 
wont  to  bring  against  their  neighbors  about  dripping  eaves  or 
party  walls;  nor  is  it  a  case  such  as  nations  frequently  bring 
against  one  another  about  boundary  lines  or  the  possession  of  a 
river  or  an  island.  No !  It  is  a  case  which  concerns  practically 
the  entire  expanse  of  the  high  seas,  the  right  of  navigation,  the 
freedom  of  trade !  ^ 

The  nature  of  the  case  he  states  in  the  formal  questions  which  he 
thus  puts  to  the  tribunal  of  conscience  and  public  opinion : 

Can  the  vast,  the  boundless  sea  be  the  appanage  of  one  king- 
dom alone,  and  it  not  the  greatest  ?  Can  any  one  nation  have  the 
right  to  prevent  other  nations,  which  so  desire,  from  selling  to 
one  another,  from  bartering  with  one  another,  actually  from 
communicating  with  one  another  ?  ^ 

'  The  Freedom  of  the  Seas.     A  dissertation  by  Hugo  Grotius.     Translated  by 
Ealph  Van  Deman  MagoflBn  (New  York;  Oxford  Press,  1916),  p.  3. 
2  Ibid.,  p.  4. 


350        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

After  making  his  bow,  as  it  were  to  the  tribunal,  he  thus  begins  his 
argument  in  the  opening  words  of  the  first  chapter  of  his  brief: 

My  intention  is  to  demonstrate  briefly  and  clearly  that  the 
Dutch — that  is  to  say,  the  subjects  of  the  United  Netherlands — 
have  the  right  to  sail  to  the  East  Indies,  as  they  are  now  doing, 
and  to  engage  in  trade  with  the  people  there.^ 

After  having  framed  his  case,  he  thus  indicates  to  the  tribunal  the 
evidence  by  which  it  is  to  be  supported : 

I  shall  base  my  argument  on  the  following  most  specific  and 
unimpeachable  axiom  of  the  Law  of  Nations,  called  a  primary 
rule  or  first  principle,  the  spirit  of  which  is  self-evident  and  im- 
mutable, to  wit:  Every  nation  is  free  to  travel  to  every  other 
nation,  and  to  trade  with  it/ 

In  the  second  chapter,  which  may  be  called  his  next  point,  Grotius 
maintains  that  the  Portuguese  have  no  right  by  title  of  discovery  to 
sovereignty  over  the  East  Indies  to  which  the  Dutch  make  voyages. 
In  support  of  this  view  he  uses  the  following  apt  passage: 

The  Portuguese  are  not  sovereigns  of  those  parts  of  the  East 
Indies  to  which  the  Dutch  sail,  that  is  to  say,  Java,  Ceylon,  and 
many  of  the  Moluccas.  This  I  prove  by  the  incontrovertible 
argument  that  no  one  is  sovereign  of  a  thing  which  he  himself 
has  never  possessed,  and  which  no  one  else  has  ever  held  in  his 
name.  These  islands  of  which  we  speak,  now  have  and  always 
have  had  their  own  kings,  their  own  government,  their  own  laws, 
and  their  own  legal  systems.  The  inhabitants  allow  the  Portu- 
guese to  trade  with  them,  just  as  they  allow  other  nations  the 
same  privilege,^ 

Grotius  then  proceeds  to  deny  that  the  lands  came  under  the  juris- 
diction of  the  Portuguese  as  a  reward  of  discovery,  and  he  also  lays 
bare  the  claim  which  still  rings  in  our  ears  of  the  superior  rights 
which  superior  civilization  or  culture  gives  to  those  who  profess  its 
possession.  He  quotes  Victoria,  a  wise  and  a  great  man  and  one  of  the 
founders  of  the  law  of  Nations,  to  the  effect  that : 

The  Spaniards  have  no  more  legal  right  over  the  East 
Indians  because  of  their  religion,  than  the  East  Indians  would 
have  had  over  the  Spaniards  if  they  had  happened  to  be  the  first 
foreigners  to  come  to  Spain.' 

^  Grotius,  Freedom  of  the  Seas,  p.  7. 

2J5id.,  p.  11.  'Ibid.,  p.  13. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    351 

And  on  the  question  of  superior  culture  and  civilization  giving  a 
superior  right,  Grotius  proceeds: 

Such  a  pretext  on  its  very  face  is  an  injustice.  Plutarch  said 
long  ago  that  it  was  greed  that  furnished  the  pretext  for  con- 
quering barbarous  countries,  and  it  is  not  unsuspected  that 
greedy  longing  for  the  property  of  another  often  hid  itself 
behind  a  pretext  of  civilizing  barbarians.  And  now  that  well- 
known  pretext  of  forcing  nations  into  a  higher  state  of  civiliza- 
tion against  their  will,  the  pretext  once  seized  by  the  Greeks 
and  by  Alexander  the  Great,  is  considered  by  all  theologians, 
especially  those  of  Spain,  to  be  unjust  and  unholy." 

In  the  third  place,  Grotius  maintains  that  the  "Portuguese  have 
no  right  of  sovereignty  over  the  East  Indies  by  virtue  of  title  based 
on  the  Papal  Donation."  On  this  point  the  mere  statement,  without 
the  reasoning  of  Grotius,  is  sufficient  for  present  purposes. 

In  the  next  place,  he  insists  that  the  Portuguese  have  no  right  of 
sovereignty  over  the  East  Indies  by  title  of  war,  concluding  after  an 
investigation  that,  as  a  matter  of  fact,  "both  possession  and  a  title  of 
possession  are  lacking"  to  the  claim  of  the  Portuguese. 

At  this  point  Grotius  reaches  the  argument,  to  which  the  others 
previously  advanced  are  in  the  nature  of  an  introduction  and  which 
a  modern  reader  might  properly  consider  immaterial,  especially  after 
the  elaborate  argument  in  the  fifth  chapter,  in  which  he  contends  that 
neither  the  ' '  Indian  Ocean  nor  the  right  of  navigation  thereon  belongs 
to  the  Portuguese  by  title  of  occupation. ' '  And  assuredly  this  portion 
of  the  tractate  was  not  lost  upon  the  conscience  and  public  opinion 
to  which  he  appealed,  and  it  should  not  be  lost  upon  the  conscience 
and  public  opinion  of  the  present  day  called  again  to  sit  in  judgment 
upon  the  freedom  of  the  seas. 

Now,  in  the  legal  phraseology  of  the  Law  of  Nations,  [he  says] 
the  sea  is  called  indifferently  the  property  of  no  one  {res  nullius), 
or  a  common  possession  {res  communis),  or  public  property  {res 
puhlica).^ 

Without  following  the  argument  of  Grotius,  which  is  very  elabo- 
rate and  very  detailed,  it  is  sufficient  for  present  purposes  to  state 
that  he  makes  of  occupation  the  source  of  title,  whether  it  be  title  by 
the  State  or  title  by  the  individual,  and  occupation  is  therefore  the 
test  of  public  and  of  private  property.  Summing  up  a  portion  of  his 
reasoning,  he  says: 

^  Grotius,  Freedom  of  the  Seas,  p.  14.  2  Hid.,  p.  22, 


352        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Two  conclusions  may  be  drawn  from  what  has  thus  far  been 
said.  The  first  is,  that  that  which  cannot  be  occupied,  or  which 
never  has  been  occupied,  cannot  be  the  property  of  anyone, 
because  all  property  has  arisen  from  occupation.  The  second  is, 
that  all  that  which  has  been  so  constituted  by  nature  that  although 
serving  some  one  person  it  still  suffices  for  the  common  use  of  all 
other  persons,  is  today  and  ought  in  perpetuity  to  remain  in  the 
same  condition  as  when  it  was  first  created  by  nature.^ 

By  way  of  illustration  he  appeals  to  an  element  whose  use  has  not  yet 
been  regulated,  but  which  must  soon  be  the  subject  of  international 
agreement : 

The  air  belongs  to  this  class  of  things  for  two  reasons.  First, 
it  is  not  susceptible  of  occupation;  and  second,  its  common  use 
is  destined  for  all  men.  For  the  same  reasons  the  sea  is  common 
to  all,  because  it  is  so  limitless  that  it  cannot  become  a  possession 
of  anyone,  and  because  it  is  adapted  for  the  use  of  all,  whether 
we  consider  it  from  the  point  of  view  of  navigation  or  of 
fisheries.    .     .     . 

These  things  therefore  are  what  the  Romans  call  'common' 
to  all  men  by  natural  law,  or  as  we  have  said,  '  public '  according 
to  the  law  of  nations;  and  indeed  they  call  their  use  sometimes 
common,  sometimes  public.^ 

Although  neither  the  air  itself  nor  the  sea  can  be  occupied  so  as  to 
become  the  property  of  anyone  or  of  any  nation,  the  fowls  of  the  air 
and  the  fish  of  the  sea  may  be  seized  and  by  seizure  they  may  become 
the  property  of  him  who  possesses  them.  On  this  distinction  and  its 
reason  Grotius  says : 

Nevertheless,  although  those  things  are  with  reason  said  to  be 
res  nullius,  so  far  as  private  ownership  is  concerned,  still  they 
differ  very  much  from  those  things  which,  though  also  res  nullius, 
have  not  been  marked  out  for  common  use,  such  for  example  as 
wild  animals,  fish,  and  birds.  For  if  anyone  seizes  those  things 
and  assumes  possession  of  them,  they  can  become  objects  of  private 
ownership,  but  the  things  in  the  former  category  by  the  consensus 
of  opinion  of  all  mankind  are  forever  exempt  from  such  private 
'  ownership  on  account  of  their  susceptibility  to  universal  use ;  and 
as  they  belong  to  all  they  cannot  be  taken  away  from  all  by  any 
one  person  any  more  than  what  is  mine  can  be  taken  away  from 
me  by  you.^ 

As  occupation  is  the  test  of  property,  private  as  well  as  public, 
Grotius  considers  that: 

'  Grotius,  Freedom  of  the  Seas,  p.  27.        2  md.,  pp.  28-29.        » lUd.,  p.  29. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      353 

Whatever  by  occupation  can  become  private  property  can  also 
become  public  property,  that  is,  the  private  property  of  a  whole 
nation.  ^ 

He  also  holds  that,  by  the  application  of  this  principle,  a  Nation  could 
acquire  the  shore  of  the  sea,  although  not  the  sea  itself,  for  he  says: 

The  nature  of  the  sea,  however,  differs  from  that  of  the  shore, 
because  the  sea,  except  for  a  very  restricted  space,  can  neither 
easily  be  built  upon,  nor  inclosed ;  if  the  contrary  were  true  yet 
this   could   hardly   happen   without   hindrance   to   the    general 


use/    .     .     . 

Therefore  the  sea  is  one  of  those  things  which  is  not  an  article 
of  merchandise,   and  which  cannot   become   private  property.^ 

After  this  line  of  argument,  Grotius  thus  sums  up  what  may  be 
considered  as  the  general  conclusions  which  he  has  reached,  and  the 
only  ones  which  are  of  a  permanent  as  distinct  from  a  temporary 
interest : 

It  has  therefore  been  demonstrated  that  neither  a  nation  nor 
an  individual  can  establish  any  right  of  private  ownership  over 
the  sea  itself  (I  except  inlets  of  the  sea),  inasmuch  as  its  occupa- 
tion is  not  permissible  either  by  nature  or  on  grounds  of  public 
utility.*  .   .   . 

The  question  at  issue  then  is  not  one  that  concerns  an  INNER 
SEA,  one  which  is  surrounded  on  all  sides  by  the  land  and  at 
some  places  does  not  even  exceed  a  river  in  breadth,  although  it  is 
well  known  that  the  Roman  jurists  cited  such  an  inner  sea  in 
their  famous  opinions  condemning  private  avarice.  No !  the  ques- 
tion at  issue  is  the  OUTER  SEA,  the  OCEAN,  that  expanse  of 
water  which  antiquity  describes  as  the  immense,  the  infinite, 
bounded  only  by  the  heavens,  parent  of  all  things;  the  ocean 
which  the  ancients  believed  was  perpetually  supplied  with  water 
not  only  by  fountains,  rivers,  and  seas,  but  by  the  clouds,  and 
by  the  very  stars  of  heaven  themselves ;  the  ocean  which,  although 
surrounding  this  earth,  the  home  of  the  human  race,  with  the  ebb 
and  flow  of  its  tides,  can  be  neither  seized  nor  inclosed;  nay, 
which  rather  possesses  the  earth  than  is  by  it  possessed.^  .    .    . 

Therefore  the  Portuguese  have  neither  just  reason  nor  respect- 
able authority  to  support  their  position,  for  all  those  persons  who 
assume  that  the  sea  can  be  subjected  to  the  sovereignty  of  any- 
one assign  it  to  him  who  holds  in  his  power  the  nearest  ports  and 
the  circumjacent  shores.    But  in  all  that  great  extent  of  coast  line 

*  Grotius,  Freedom  of  the  Seas,  p.  30. 

2  Ibid.,  p.  31.  'Ibid.,  p.  34.  *  Ibid.,  pp.  36-37.  &  ibid.,  p.  37. 


354       A  SURVEY  OF  INTERNATIONAL  RELATIONS 

reaching  to  the  East  Indies  the  Portuguese  have  nothing  which 
they  can  call  their  own  except  a  few  fortified  posts. 

And  then  even  if  a  man  were  to  have  dominion  over  the  sea, 
still  he  could  not  take  away  anything  from  its  common  use,  just 
as  the  Roman  people  could  not  prevent  anyone  from  doing  on 
the  shores  of  their  dominions  all  those  things  which  were  per- 
mitted by  the  law  of  nations.  And  if  it  were  possible  to  prohibit 
any  of  those  things,  say  for  example,  fishing,  for  in  a  way  it  can 
be  maintained  that  fish  are  exhaustible,  still  it  would  not  be  per- 
missible to  prohibit  navigation,  for  the  sea  is  not  exhausted  by 
that  use. 

The  most  conclusive  argument  on  this  question  by  far  how- 
ever is  the  one  that  we  have  already  brought  forward  based  on  the 
opinions  of  eminent  jurists,  namely,  that  even  over  land  which 
had  been  converted  into  private  property  either  by  states  or  indi- 
viduals, unarmed  and  innocent  passage  is  not  justly  to  be  denied 
to  persons  of  any  country,  exactly  as  the  right  to  drink  from  a 
river  is  not  to  be  denied.  The  reason  is  clear,  because,  inasmuch  as 
one  and  the  same  thing  is  susceptible  by  nature  to  different  uses, 
the  nations  seem  on  the  one  hand  to  have  apportioned  among 
themselves  that  use  which  cannot  be  maintained  conveniently 
apart  from  private  ownership ;  but  on  the  other  hand  to  have 
reserved  that  use  through  the  exercise  of  which  the  condition  of 
the  owner  would  not  be  impaired.' 

In  Chapter  VI  Grotius  denies  the  right  to  navigation,  just  as  he 
had  previously  denied  the  right  of  title  to  the  sea,  by  virtue  of  Papal 
Donation.  In  Chapter  VII  he  states  that  the  Portuguese  can  have 
neither  right  to  the  sea  nor  to  exclusive  navigation  by  prescription  or 
custom,  and  he  argues  this  matter  at  very  considerable  length.  For 
present  purposes  it  may  be  said,  in  passing,  that  if  title  cannot  be 
acquired  by  grant  it  cannot  be  acquired  by  prescription,  which  either 
presupposes  a  grant  or  has  the  effect  of  a  grant,  and  if  the  high  seas 
are  incapable  of  occupation  it  is  indifferent  what  the  claim  and  title 
may  be,  whether  by  prescription  or  by  custom,  which  also  can  be  of 
a  thing  which  might  be  granted. 

In  the  eighth  chapter  Grotius  states  that,  by  the  law  of  Nations, 
trade  is  free  to  all  persons  whatsoever.  It  would  seem  that  this  head- 
ing is  a  consequence  of  the  foregoing  observations,  and  Grotius  him- 
self says  that  the  claim  of  the  Portuguese  to  an  exclusive  right  to 
trade  with  the  East  Indians  is  "refuted  by  practically  all  the  same 
arguments  which  already  have  been  brought  forward,"  He  never- 
theless feels  it  necessary  to  repeat  them  briefly,  but  for  present  pur- 
poses it  may  be  said  that,  upon  the  introduction  of  private  ownership, 

^  Grotius,  Freedom  of  the  Seas,  pp.  43-44. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      355 

*'a  change  brought  about  by  necessity,"  there  straightway  arose,  "a 
method  of  exchange  by  which  the  lack  of  one  person  was  supplemented 
by  that  of  which  another  person  had  an  oversupply ' ' ;  that  for  the  pur- 
pose of  exchange  shipping  was  necessary  and  that  to  deny  the  right  of 
trade  upon  the  high  seas  was  to  deny  the  right  of  exchange  essential 
to  the  full  enjoyment  of  property;  and  for  other  reasons,  which  arc 
not  material,  as  the  matter  to  us  seems  to  be  an  axiom  which  either 
does  not  or  cannot  need  a  justification.  Grotius'  conclusion,  however, 
is  well  worth  the  quoting,  irrespective  of  the  reason  upon  which  it  is 
based : 

Therefore  freedom  of  trade  is  based  on  a  primitive  right  of 
nations  which  has  a  natural  and  permanent  cause;  and  so  that 
right  cannot  be  destroyed,  or  at  all  events  it  may  not  be  destroyed 
except  by  the  consent  of  all  nations/ 

Passing  over  the  observations  of  the  brief  which  are  the  conse- 
quences of  the  principles  laid  down,  Grotius  contends  in  Chapter  IX 
that  trade  with  the  East  Indies  does  not  belong  to  the  Portuguese  by 
title  of  occupation ;  in  Chapter  X,  that  trade  with  the  East  Indies  does 
not  belong  to  the  Portuguese  by  virtue  of  title  based  on  the  Papal 
Donation;  in  Chapter  XI,  that  trade  with  the  East  Indies  does  not 
belong  to  the  Portuguese  by  title  of  prescription  or  custom;  and  in 
Chapter  XII,  that  the  Portuguese  prohibition  of  trade  has  no  founda- 
tion in  equity,  in  which  chapter,  however,  there  is  more  than  one  pas- 
sage worthy  of  quotation  and  which  may  well  be  pondered,  as  human 
nature  is  much  the  same  today  as  it  was  in  1608,  and  as  it  was  cen- 
turies before.    Thus,  Grotius  says : 

Moreover,  it  is  natural  and  conformable  to  the  highest  law  as 
well  as  equity,  that  when  a  gain  open  to  all  is  concerned  every 
person  prefers  it  for  himself  rather  than  for  another,  even  if  that 
other  had  already  discovered  it.^ 

But  after  this  statement,  which  cannot  be  gainsaid,  he  puts  the  em- 
barrassing question: 

Who  would  countenance  an  artisan  who  complained  that  an- 
other artisan  was  taking  away  his  profits  by  the  exercise  of  the 
same  craft  ?2 

And  he  answers  this  adroitly,  if  not  directly,  saying : 

^  Grotius,  Freedom  of  the  Seas,  pp.  63-64. 
2  Ibid.,  pp.  69-70. 


356        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

But  the  cause  of  the  Dutch  is  the  more  reasonable,  because 
their  advantage  in  this  matter  is  bound  up  with  the  advantage 
of  the  whole  human  race,  an  advantage  which  the  Portuguese  are 
trying  to  destroy.' 

And  on  this  point,  which  is  really  involved  in  the  freedom  of  the  seas, 
he  thus  proceeds,  as  is  his  wont,  by  question  and  answer: 

Indeed  can  anything  more  unjust  be  conceived  than  for  the 
Spaniards  to  hold  the  entire  world  tributary,  so  that  it  is  not 
permissible  either  to  buy  or  to  sell  except  at  their  good  pleasure  ? 
In  all  states  we  heap  odium  upon  grain  speculators  and  even  bring 
them  to  punishment ;  and  in  very  truth  there  seems  to  be  no  other 
sort  of  business  so  disgraceful  as  that  of  forcing  up  prices  in  the 
grain  market.  That  is  not  to  be  wondered  at,  for  such  speculators 
are  doing  an  injury  to  nature,  who,  as  Aristotle  says,  is  fertile 
for  all  alike.  Accordingly  it  ought  not  to  be  supposed  that  trade 
was  invented  for  the  benefit  of  a  few,  but  in  order  that  the  lack 
of  one  would  be  counterbalanced  by  the  oversupply  of  another, 
a  fair  return  also  being  guaranteed  to  all  who  take  upon  them- 
selves the  work  and  the  danger  of  transport.' 

Again  pursuing  the  method  of  question  and  answer,  he  writes: 

Is  the  same  thing  then  which  is  considered  grievous  and  per- 
nicious in  the  smaller  community  of  a  State  to  be  put  up  with  at 
all  in  that  great  community  of  the  human  race  ?  Shall  the  people 
of  Spain,  forsooth,  assume  a  monopoly  of  all  the  world  ?  Ambrose 
inveighs  against  those  who  interfere  with  the  freedom  of  the  sea ; 
Augustine  against  those  who  obstruct  the  overland  routes;  and 
Gregory  of  Nazianzus  against  those  who  buy  goods  and  hold 
them,  and  thus  (as  he  eloquently  says)  make  profits  for  them- 
selves alone  out  of  the  helplessness  and  need  of  others.  .  .  . 

Therefore  the  Portuguese  may  cry  as  loud  and  as  long  as  they 
shall  please:  'You  are  cutting  down  our  profits!'  The  Dutch 
will  answer :  *  Nay !  we  are  but  looking  out  for  our  own  interests ! 
Are  you  angry  because  we  share  with  you  in  the  winds  and  the 
sea?" 

Therefore,  in  theory  and  in  practice  the  high  seas  are  not  subject 
to  the  exclusive  jurisdiction  of  any  one  Power.  They  are  high  or  open 
seas,  to  distinguish  them  from  the  inland  or  closed  seas  which  are 
subject  to  the  jurisdiction  of  the  country  within  whose  territory  they 
are  situated,  or  to  the  jurisdiction  of  the  countries  bordering  upon 
them.     We  are  here  dealing  with  a  general  truth  and  not  with  an 

'■  Grotius,  Freedom  of  the  Seas,  pp.  70-71. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      357 

academic  question,  for  innumerable  attempts  have  been  made  to  sub- 
ject the  open  seas  to  the  exclusive  control  of  countries  feeling  them- 
selves powerful  enough  to  make  good  by  force  the  claim  which  right 
denied.  But  the  attempt  has  failed  and  nothing  remains  of  the  claim 
except  the  right  admitted  by  international  law  to  exercise  jurisdiction, 
which  is  far  from  exclusive,  within  the  territorial  waters,  or  rather 
so  much  of  the  waters  washing  the  coast  of  any  particular  country  as 
can  be  controlled  by  the  cannon  of  land  batteries.  The  vast  bodies  of 
water,  with  the  possible  exception  of  coastal  waters,  are  the  common 
highway  of  Nations,  with  equal  rights  to  all  and  special  privileges  to 
none.  And  while  a  Nation  retains  its  jurisdiction  over  its  vessels  upon 
the  high  seas,  this  jurisdiction  does  not  extend  to  the  waters  which 
they  navigate  but  only  to  the  vessels  themselves,  their  crews,  their 
passengers,   their  cargoes. 

The  Imperial  German  Government  cannot  in  the  matter  of  the 
high  seas  rightfully  impose  its  will  upon  the  United  States.  The 
United  States  can  only  be  deprived  of  its  right  to  navigate  the  high 
seas  by  its  own  consent,  and  the  United  States  has  not  consented. 

The  freedom  of  the  seas  is  a  phrase  much  in  vogue  during  the 
present  war,  but  those  who  use  it  most  define  it  least.  Yet  it  is 
to  be  pointed  out  that  from  the  publication  of  the  little  tractate  on 
the  freedom  of  the  seas  at  the  beginning  of  the  seventeenth  century, 
the  term  has  had  a  definite,  known  meaning,  and  the  meaning  attached 
to  it  by  the  youthful  Grotius  is  the  same  as  the  definition  and  meaning 
attached  to  it  by  President  Wilson,  who  is  now  engaged  in  preserving 
that  system  of  law  expounded  by  Grotius. 

Now,  the  freedom  of  the  seas  proclaimed  by  Grotius  and  defended 
by  the  President  means  the  right  of  every  Nation  to  navigate  the  high 
seas  without  permission  of  or  obstruction  from  any  one  Nation,  and 
that  no  group  of  Nations  has  any  exclusive  right  to  the  patrimony  of 
all.  Such  is  the  rule  and  such  is  the  practice  of  Nations  in  time  of 
peace.  In  time  of  war  belligerent  Nations  are,  by  the  consent  of  all, 
permitted  to  give  battle  upon  the  high  seas,  to  destroy  the  fighting 
forces  of  the  enemy  wherever  found,  to  visit  and  to  search  neutral 
merchantmen  in  order  to  satisfy  themselves  that  the  vessels  are  en- 
gaged in  a  neutral,  not  in  an  unneutral  or  prohibited  service.  The 
freedom  of  the  seas,  although  limited  by  war,  is  not  abrogated  by  it, 
and  in  time  of  war  the  freedom  of  the  seas  obtains,  means,  and 
requires  that  neutral  vessels  may  lawfully  trade  with  the  enemy 
unless  its  ports  are  closed  by  blockade  declared  and  maintained  in 
the  form  required  by  the  law  of  Nations;  that  if  the  ports  are  not 


358        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

legally  blockaded,  neutral  vessels  may  still  carry  their  cargoes  to 
enemj'-  ports,  subject  to  capture  and  confiscation  of  the  cargoes  if 
they  fall  within  the  category  of  contraband ;  and  that  neutral  vessels 
may,  by  the  law  of  Nations,  trade  with  all  neutral  ports,  unless 
the  cargoes  fall  within  the  category  of  contraband  and  the  neutral 
ports  are  interposed  to  conceal  ultimate  destination  to  the  enemy. 
But,  excepting  men-of-war,  which  may  be  sunk  without  warning, 
neither  merchant  vessels  of  the  enemy  nor  neutral  vessels  can  law- 
fully be  destroyed  and  sunk  without  first  removing  crew  and  pas- 
sengers to  places  of  safety  and  without  taking  possession  of  the  ships' 
papers,  in  order  that  the  validity  of  the  action  may  be  tested  and 
decided  by  the  prize  courts  of  the  captor's  country,  where,  indeed, 
every  presumption  is  in  favor  of  the  capture  but  where,  nevertheless, 
the  law  of  Nations  regulating  such  a  matter  is  presumed  to  be  admin- 
istered. 

When  the  Imperial  German  Government  proclaims  the  freedom  of 
the  seas  in  its  correspondence  with  the  United  States,  it  means  the 
liberation  of  Nations  from  the  alleged  unlawful  interference  of 
Great  Britain  with  the  rights  of  neutrals  to  trade  with  Great 
Britain's  enemies;  when  Great  Britain  mentions  the  freedom  of 
the  seas  in  its  correspondence  with  the  United  States,  it  means 
the  alleged  unlawful  interference  of  Germany  with  the  rights 
of  neutrals  to  trade  with  Germany's  enemies;  and  when 
the  United  States  advocates  the  freedom  of  the  seas  in  its 
correspondence  with  the  Imperial  German  Government  and  Great 
Britain,  it  means  the  rights  of  neutrals  to  trade  indifferently  with 
both  without  interference  from  one  or  the  other,  according  to  the 
principles  of  international  law  generally  recognized  on  the  first  day  of 
August,  1914.  Each  of  these  three  countries  appeals  to  the  freedom 
of  the  seas  in  the  sense  in  which  belligerents  on  the  one  hand  and 
neutrals  on  the  other  understand  that  term.  The  rights  of  the  many 
must  prevail  over  the  claims  of  the  few  and  of  the  one;  by  reason, 
if  possible,  by  force,  if  necessary. 

In  the  thirteenth  and  last  chapter  of  the  Mare  Liherum,  Grotius 
declares  that  his  countrymen  must  maintain  their  right  of  trade  by 
peace,  by  treaty,  or  by  war,  saying: 

Wherefore  since  both  law  and  equity  demand  that  trade  with 
the  East  Indies  be  as  free  to  us  as  to  anyone  else,  it  follows  that 
we  are  to  maintain  at  all  hazards  that  freedom  which  is  ours  by 
nature,  either  by  coming  to  a  peace  agreement  with  the  Spaniards, 
or  by  concluding  a  treaty,  or  by  continuing  the  war.    So  far  as 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      359 

peace  is  concerned,  it  is  well  known  that  there  are  two  kinds  of 
peace,  one  made  on  terms  of  equality,  the  other  on  unequal  terms. 
The  Greeks  call  the  former  kind  a  compact  between  equals,  the 
latter  an  enjoined  truce ;  the  former  is  meant  for  high  souled  men, 
the  latter  for  servile  spirits.  Demosthenes  in  his  speech  on  the 
liberty  of  the  Rhodians  says  that  it  was  necessary  for  those  who 
wished  to  be  free  to  keep  away  from  treaties  which  were  imposed 
upon  them,  because  such  treaties  were  almost  the  same  as  slavery. 
Such  conditions  are  all  those  by  which  one  party  is  lessened  in  its 
own  right,  according  to  the  definition  of  Isocrates.  For  if,  as 
Cicero  says,  wars  must  be  undertaken  in  order  that  people  may 
live  in  peace  unharmed,  it  follows  that  peace  must  be  called  not 
a  pact  which  entails  slavery,  but  an  undisturbed  liberty,  espe- 
cially as  peace  and  justice  according  to  the  opinion  of  many 
philosophers  and  theologians  differ  more  in  name  than  in  fact, 
and  as  peace  is  a  harmonious  agreement  based  not  on  individual 
whim,  but  on  well  ordered  regulations.  .  ,  . 

But  if  we  are  driven  into  war  by  the  injustice  of  our  enemies, 
the  justice  of  our  cause  ought  to  bring  hope  and  confidence  in 
a  happy  outcome.    .    .    . 

Therefore,  if  it  be  necessary,  arise,  0  nation  unconquered 
on  the  sea,  and  fight  boldly,  not  only  for  your  own  liberty,  but 
for  that  of  the  human  race.  "Nor  let  it  fright  thee  that  their 
fleet  is  winged,  each  ship,  with  an  hundred  oars.  The  sea  whereon 
it  sails  will  have  none  of  it. "  ^ 

So  Hugo  Grotius  in  1608 ;  so  Woodrow  Wilson  in  1917. 
'  Grotius,  Freedom  of  the  8eas,  pp.  72-73. 


CONCLUSION 

The  President  properly  stated  in  his  address  of  April  2d  to  the 
Congress  that  he  was  assuming  a  grave  responsibility  in  recommending 
a  declaration  of  the  existence  of  a  state  of  war  against  the  Imperial 
German  Government,  for  the  day  has  long  since  passed,  at  least  in 
democratic  countries,  where  the  head  of  a  State,  whether  he  be  monarch 
or  president,  can  go  to  war  as  the  king  went  a-hunting.  War  may 
be  an  imperial,  it  is  no  longer  a  royal,  sport,  and  it  never  has  been 
and  it  never  will  be,  it  is  to  be  hoped,  a  presidential  one.  War  is 
ordinarily  declared  in  a  moment  of  excitement  and  reason  is  likely 
to  be  swayed  by  enthusiasm,  but  we  cannot  today  in  democracies 
justify  a  declaration  of  war  unless  the  cause  be  just,  and,  however 
we  may  deceive  ourselves,  we  cannot  deceive  posterity,  which  passes 
alike  upon  the  acts  of  autocrat,  constitutional  monarch,  president,  and 
people.  We  must  decide  according  to  our  knowledge  of  present  condi- 
tions and  according  to  these  conditions  our  actions  are  to  be  judged 
in  first  instance;  but  the  future  must  finally  decide  the  question. 

The  President  has  stated  the  case  of  the  United  States  against  the 
Imperial  German  Government  clearly  and  in  detail.  He  has  enu- 
merated the  special  reasons  which,  in  his  opinion,  would  be  a  proper 
cause  of  armed  action.  He  has  searched  his  own  heart  and  the  con- 
science of  the  American  people,  that  the  motives  and  objects  of  the 
war  may  not  only  justify  but  require  in  the  circumstances  and  con- 
ditions the  declaration  of  a  state  of  war.  It  is  indeed  a  grave  respon- 
sibility which  the  President  assumed  in  recommending  the  war,  which 
the  Congress  assumed  in  declaring  its  existence,  and  which  the  people 
of  the  United  States  assume  in  carrying  it  on. 

We  believe  that  the  reasons  given  are  causes,  not  pretexts,  that  the 

motives  and  purposes  are  sincere  and  sufficient ;  but  on  all  these  matters 

posterity  has  the  final  word.    For  whether  we  will  or  no,  **Die  Welt- 

geschichte  ist  das  Weltgericht. ' '  ^ 

JAMES  BROWN  SCOTT. 

Washington,  D.  C. 
September  16,  1917. 

'"The  history  of  the  world  is  the  world's  court  of  judgment."  From: 
Hegel's  Philosophy  of  Right.  Translated  by  S.  W.  Dyde  (London,  Geo.  Bell  & 
Sons,  1896),  p.  341. 

360 


POST  SCRIPTUM 


POST  SCRIPTUM 

1.  REPLY  OF  THE  PRESIDENT  OF  THE  UNITED  STATES 
TO  THE  PEACE  APPEAL  OF  THE  POPE,  AUGUST  27,  1917: 

To  His  Holiness  Benedictus  XV,  Pope: 

In  acknowledgment  of  the  communication  of  Your  Holiness  to  the 
belligerent  peoples,  dated  August  1,  1917,  the  President  of  the  United 
States  requests  me  to  transmit  the  following  reply : 

Every  heart  that  has  not  been  blinded  and  hardened  by  this 
terrible  war  must  be  touched  by  this  moving  appeal  of  His  Holi- 
ness the  Pope,  must  feel  the  dignity  and  force  of  the  humane 
and  generous  motives  which  prompted  it,  and  must  fervently 
wish  that  we  might  take  the  path  of  peace  he  so  persuasively 
points  out.  But  it  would  be  folly  to  take  it  if  it  does  not  in  fact 
lead  to  the  goal  he  proposes.  Our  response  must  be  based  upon 
the  stern  facts  and  upon  nothing  else.  It  is  not  a  mere  cessation 
of  arms  he  desires ;  it  is  a  stable  and  enduring  peace.  This  agony 
must  not  be  gone  through  with  again,  and  it  must  be  a  matter 
of  very  sober  judgment  what  will  insure  us  against  it. 

His  Holiness  in  substance  proposes  that  we  return  to  the 
status  quo  ante  helium,  and  that  then  there  be  a  general  con- 
donation, disarmament,  and  a  concert  of  nations  based  upon  an 
acceptance  of  the  principle  of  arbitration ;  that  by  a  similar  con- 
cert freedom  of  the  seas  be  established;  and  that  the  territorial 
claims  of  France  and  Italy,  the  perplexing  problems  of  the 
Balkan  States,  and  the  restitution  of  Poland  be  left  to  such  con- 
ciliatory adjustments  as  may  be  possible  in  the  new  temper  of 
such  a  peace,  due  regard  being  paid  to  the  aspirations  of  the 
peoples  whose  political  fortunes  and  affiliations  will  be  involved. 

It  is  manifest  that  no  part  of  this  program  can  be  success- 
fully carried  out  unless  the  restitution  of  the  status  quo  ante 
furnishes  a  firm  and  satisfactory  basis  for  it.  The  object  of  this 
war  is  to  deliver  the  free  peoples  of  the  world  from  the  menace 
and  the  actual  power  of  a  vast  military  establishment  controlled 
by  an  irresponsible  Government  which,  having  secretly  planned 
to  dominate  the  world,  proceeded  to  carry  the  plan  out  without 

361 


362        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

regard  either  to  the  sacred  obligations  of  treaty  or  the  long- 
established  practices  and  long-cherished  principles  of  inter- 
national action  and  honor ;  which  chose  its  own  time  for  the  war ; 
delivered  its  blow  fiercely  and  suddenly;  stopped  at  no  barrier 
either  of  law  or  of  mercy;  swept  a  whole  continent  within  the 
tide  of  blood — not  the  blood  of  soldiers  only,  but  the  blood  of 
innocent  women  and  children  also  and  of  the  helpless  poor;  and 
now  stands  balked  but  not  defeated,  the  enemy  of  four-fifths  of 
the  world.  This  power  is  not  the  German  people.  It  is  the 
ruthless  master  of  the  German  people.  It  is  no  business  of  ours 
how  that  great  people  came  under  its  control  or  submitted  with 
temporary  zest  to  the  domination  of  its  purpose;  but  it  is  our 
business  to  see  to  it  that  the  history  of  the  rest  of  the  world  is 
no  longer  left  to  its  handling. 

To  deal  with  such  a  power  by  way  of  peace  upon  the  plan 
proposed  by  His  Holiness  the  Pope  would,  so  far  as  we  can  see, 
involve  a  recuperation  of  its  strength  and  a  renewal  of  its  policy ; 
would  make  it  necessary  to  create  a  permanent  hostile  combina- 
tion of  nations  against  the  German  people,  who  are  its  instru- 
ments; and  would  result  in  abandoning  the  new-born  Russia  to 
the  intrigue,  the  manifold  subtle  interference,  and  the  certain 
counter-revolution  which  would  be  attempted  by  all  the  malign 
influences  to  which  the  German  Government  has  of  late  accus- 
tomed the  world.  Can  peace  be  based  upon  a  restitution  of  its 
power  or  upon  any  word  of  honor  it  could  pledge  in  a  treaty 
of  settlement  and  accommodation? 

Responsible  statesmen  must  now  everywhere  see,  if  they  never 
saw  before,  that  no  peace  can  rest  securely  upon  political  or 
economic  restrictions  meant  to  benefit  some  nations  and  cripple 
or  embarrass  others,  upon  vindictive  action  of  any  sort,  or  any 
kind  of  revenge  or  deliberate  injury.  The  American  people  have 
suffered  intolerable  wrongs  at  the  hands  of  the  Imperial  German 
Government,  but  they  desire  no  reprisal  upon  the  German  people, 
who  have  themselves  suffered  all  things  in  this  war,  which  they 
did  not  choose.  They  believe  that  peace  should  rest  upon  the 
rights  of  peoples,  not  the  rights  of  Governments — the  rights  of 
peoples  great  or  small,  weak  or  powerful — their  equal  right  to 
freedom  and  security  and  self-government  and  to  a  participation 
upon  fair  terms  in  the  economic  opportunities  of  the  world,  the 
German  people  of  course  included  if  they  will  accept  equality 
and  not  seek  domination. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      363 

The  test,  therefore,  of  every  plan  of  peace  is  this :  Is  it  based 
upon  the  faith  of  all  the  peoples  involved  or  merely  upon  the 
word  of  an  ambitious  and  intriguing  Government,  on  the  one 
hand,  and  of  a  group  of  free  peoples,  on  the  other?  This  is  a 
test  which  goes  to  the  root  of  the  matter ;  and  it  is  the  test  which 
must  be  applied. 

The  purposes  of  the  United  States  in  this  war  are  known  to 
the  whole  world,  to  every  people  to  whom  the  truth  has  been  per- 
mitted to  come.  They  do  not  need  to  be  stated  again.  We  seek 
no  material  advantage  of  any  kind.  We  believe  that  the  intoler- 
able wrongs  done  in  this  war  by  the  furious  and  brutal  power 
of  the  Imperial  German  Government  ought  to  be  repaired,  but 
not  at  the  expense  of  the  sovereignty  of  any  people — rather  a 
vindication  of  the  sovereignty  both  of  those  that  are  weak  and 
of  those  that  are  strong.  Punitive  damages,  the  dismemberment 
of  empires,  the  establishment  of  selfish  and  exclusive  economic 
leagues,  we  deem  inexpedient  and  in  the  end  worse  than  futile, 
no  proper  basis  for  a  peace  of  any  kind,  least  of  all  for  an 
enduring  peace.  That  must  be  based  upon  justice  and  fairness 
and  the  common  rights  of  mankind. 

We  cannot  take  the  word  of  the  present  rulers  of  Germany 
as  a  guarantee  of  anything  that  is  to  endure,  unless  explicitly 
supported  by  such  conclusive  evidence  of  the  will  and  purpose 
of  the  German  people  themselves  as  the  other  peoples  of  the 
world  would  be  justified  in  accepting.  Without  such  guarantees 
treaties  of  settlement,  agreements  for  disarmament,  covenants  to 
set  up  arbitration  in  the  place  of  force,  territorial  adjustments, 
reconstitutions  of  small  nations,  if  made  with  the  German  Gov- 
ernment, no  man,  no  nation  could  now  depend  on.  We  must 
await  some  new  evidence  of  the  purposes  of  the  great  peoples 
of  the  Central  Powers.  God  grant  it  may  be  given  soon  and  in 
a  way  to  restore  the  confidence  of  all  peoples  everywhere  in  the 
faith  of  nations  and  the  possibility  of  a  covenanted  peace. 

Robert  Lansing, 
Secretary  of  State  of  the  United  States  of  America^ 

*  Official  Bulletin,  August  29,  1917. 


364        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

2.  ADDRESS  OF  THE  PRESIDENT  OF  THE  UNITED 
STATES  DELIVERED  AT  A  JOINT  SESSION  OF  THE  TWO 
HOUSES  OP  CONGRESS,  DECEMBER  4,  1917: 

Gentlemen  op  the  Congress  : 

Eight  months  have  elapsed  since  I  last  had  the  honour  of  address- 
ing you.  They  have  been  months  crowded  with  events  of  immense 
and  grave  significance  for  us.  I  shall  not  undertake  to  retail  or  even 
to  summarize  those  events.  The  practical  particulars  of  the  part  we 
have  played  in  them  will  be  laid  before  you  in  the  reports  of  the 
Executive  Departments.  I  shall  discuss  only  our  present  outlook 
upon  these  vast  affairs,  our  present  duties,  and  the  immediate  means 
of  accomplishing  the  objects  we  shall  hold  always  in  view. 

I  shall  not  go  back  to  debate  the  causes  of  the  war.  The  intoler- 
able wrongs  done  and  planned  against  us  by  the  sinister  masters 
of  Germany  have  long  since  become  too  grossly  obvious  and  odious 
to  every  true  American  to  need  to  be  rehearsed.  But  I  shall  ask 
you  to  consider  again  and  with  a  very  grave  scrutiny  our  objectives 
and  the  measures  by  which  we  mean  to  attain  them;  for  the  purpose 
of  discussion  here  in  this  place  is  action,  and  our  action  must  move 
straight  towards  definite  ends.  Our  object  is,  of  course,  to  win  the 
war;  and  we  shall  not  slacken  or  suffer  ourselves  to  be  diverted  until 
it  is  won.  But  it  is  worth  while  asking  and  answering  the  question, 
"When  shall  we  consider  the  war  won? 

From  one  point  of  view  it  is  not  necessary  to  broach  this  funda- 
mental matter.  I  do  not  doubt  that  the  American  people  know  what 
the  war  is  about  and  what  sort  of  an  outcome  they  will  regard  as  a 
realization  of  their  purpose  in  it.  As  a  nation  we  are  united  in  spirit 
and  intention.  I  pay  little  heed  to  those  who  tell  me  otherwise.  I 
hear  the  voices  of  dissent, — who  does  not?  I  hear  the  criticism  and 
the  clamour  of  the  noisily  thoughtless  and  troublesome.  I  also  see 
men  here  and  there  fling  themselves  in  impotent  disloyalty  against 
the  calm,  indomitable  power  of  the  nation.  I  hear  men  debate  peace 
who  understand  neither  its  nature  nor  the  way  in  which  we  may 
attain  it  with  uplifted  eyes  and  unbroken  spirits.  But  I  know  that 
none  of  these  speaks  for  the  nation.  They  do  not  touch  the  heart  of 
anything.  They  may  safely  be  left  to  strut  their  uneasj'^  hour  and 
be  forgotten. 

But  from  another  point  of  view  I  believe  that  it  is  necessary  to 
say  plainly  what  we  here  at  the  seat  of  action  consider  the  war  to 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    365 

be  for  and  what  part  we  mean  to  play  in  the  settlement  of  its  search- 
ing issues.  We  are  the  spokesmen  of  the  American  people  and  they 
have  a  right  to  know  whether  their  purpose  is  ours.  They  desire 
peace  by  the  overcoming  of  evil,  by  the  defeat  once  for  all  of  the 
sinister  forces  that  interrupt  peace  and  render  it  impossible,  and 
they  wish  to  know  how  closely  our  thought  runs  with  theirs  and 
what  action  we  propose.  They  are  impatient  with  those  who  desire 
peace  by  any  sort  of  compromise, — deeply  and  indignantly  impa- 
tient,— but  they  will  be  equally  impatient  with  us  if  we  do  not  make 
it  plain  to  them  what  our  objectives  are  and  what  we  are  planning 
for  in  seeking  to  make  conquest  of  peace  by  arms. 

I  believe  that  I  speak  for  them  when  I  say  two  things :  First,  that 
this  intolerable  Thing  of  which  the  masters  of  Germany  have  shown 
us  the  ugly  face,  this  menace  of  combined  intrigue  and  force  which 
we  now  see  so  clearly  as  the  German  power,  a  Thing  without  con- 
science or  honour  or  capacity  for  covenanted  peace,  must  be  crushed 
and,  if  it  be  not  utterly  brought  to  an  end,  at  least  shut  out  from  the 
friendly  intercourse  of  the  nations ;  and,  second,  that  when  this  Thing 
and  its  power  are  indeed  defeated  and  the  time  comes  that  we  can  dis- 
cuss peace, — when  the  German  people  have  spokesmen  whose  word 
we  can  believe  and  when  those  spokesmen  are  ready  in  the  name  of 
their  people  to  accept  the  common  judgment  of  the  nations  as  to  what 
shall  henceforth  be  the  bases  of  law  and  of  covenant  for  the  life  of 
the  world, — we  shall  be  willing  and  glad  to  pay  the  full  price  for 
peace,  and  pay  it  ungrudgingly.  We  know  what  that  price  will  be. 
It  will  be  full,  impartial  justice, — justice  done  at  every  point  and  to 
every  nation  that  the  final  settlement  must  affect,  our  enemies  as  well 
as  our  friends. 

You  catch,  with  me,  the  voices  of  humanity  that  are  in  the  air. 
They  grow  daily  more  audible,  more  articulate,  more  persuasive, 
and  they  come  from  the  hearts  of  men  everywhere.  They  insist  that 
the  war  shall  not  end  in  vindictive  action  of  any  kind;  that  no 
nation  or  people  shall  be  robbed  or  punished  because  the  irrespon- 
sible rulers  of  a  single  country  have  themselves  done  deep  and 
abominable  wrong.  It  is  this  thought  that  has  been  expressed  in 
the  formula  'No  annexations,  no  contributions,  no  punitive  indem- 
nities.' Just  because  this  crude  formula  expresses  the  instinctive 
judgment  as  to  right  of  plain  men  everywhere  it  has  been  made 
diligent  use  of  by  the  masters  of  German  intrigue  to  lead  the  people 
of  Russia  astray — and  the  people  of  every  other  country  their  agents 
could  reaab,  in  order  that  a  premature  peace  might  be  brought  about 


366        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

before  autocracy  has  been  taught  its  final  and  convincing  lesson, 
and  the  people  of  the  world  put  in  control  of  their  own  destinies. 

But  the  fact  that  a  wrong  use  has  been  made  of  a  just  idea  is  no 
reason  why  a  right  use  should  not  be  made  of  it.  It  ought  to  be 
brought  under  the  patronage  of  its  real  friends.  Let  it  be  said  again 
that  autocracy  must  first  be  shown  the  utter  futility  of  its  claims  to 
power  or  leadership  in  the  modern  world.  It  is  impossible  to  apply 
any  standard  of  justice  so  long  as  such  forces  are  unchecked  and 
undefeated  as  the  present  masters  of  Germany  command.  Not  until 
that  has  been  done  can  Right  be  set  up  as  arbiter  and  peace-maker 
among  the  nations.  But  when  that  has  been  done, — as,  God  willing, 
it  assuredly  will  be, — we  shall  at  last  be  free  to  do  an  unprecedented 
thing,  and  this  is  the  time  to  avow  our  purpose  to  do  it.  We  shall  be 
free  to  base  peace  on  generosity  and  justice,  to  the  exclusion  of  all 
selfish  claims  to  advantage  even  on  the  part  of  the  victors. 

Let  there  be  no  misunderstanding.  Our  present  and  immediate 
task  is  to  win  the  war,  and  nothing  shall  turn  us  aside  from  it  until 
it  is  accomplished.  Every  power  and  resource  we  possess,  whether 
of  men,  of  money,  or  of  materials,  is  being  devoted  and  will  continue 
to  be  devoted  to  that  purpose  until  it  is  achieved.  Those  who  desire 
to  bring  peace  about  before  that  purpose  is  achieved  I  counsel  to 
carry  their  advice  elsewhere.  We  will  not  entertain  it.  We  shall  re- 
gard the  war  as  won  only  when  the  German  people  say  to  us,  through 
properly  accredited  representatives,  that  they  are  ready  to  agree  to  a 
settlement  based  upon  justice  and  the  reparation  of  the  wrongs  their 
rulers  have  done.  They  have  done  a  wrong  to  Belgium  which  must 
be  repaired.  They  have  established  a  power  over  other  lands  and 
peoples  than  their  own, — over  the  great  Empire  of  Austria-Hungary, 
over  hitherto  free  Balkan  states,  over  Turkey,  and  within  Asia, — 
which  must  be  relinquished. 

Germany's  success  by  skill,  by  industry,  by  knowledge,  by  enter- 
prise we  did  not  grudge  or  oppose,  but  admired,  rather.  She  had 
built  up  for  herself  a  real  empire  of  trade  and  influence,  secured 
by  the  peace  of  the  world.  We  were  content  to  abide  the  rivalries 
of  manufacture,  science,  and  commerce  that  were  involved  for  us 
in  her  success  and  stand  or  fall  as  we  had  or  did  not  have  the 
brains  and  the  initiative  to  surpass  her.  But  at  the  moment  when 
she  had  conspicuously  won  her  triumphs  of  peace  she  threw  them 
away,  to  establish  in  their  stead  what  the  world  will  no  longer 
permit  to  be  established,  military  and  political  domination  by  arms, 
by  which  to  oust  where  she  could  not  excel  the  rivals  she  most  feared 


BETWEEN  THE  UNITED  STATES  AND  GERMANY    367 

and  hated.  The  peace  we  make  must  remedy  that  wrong.  It  must 
deliver  the  once  fair  lands  and  happy  peoples  of  Belgium  and 
northern  France  from  the  Prussian  conquest  and  the  Prussian  menace, 
but  it  must  also  deliver  the  peoples  of  Austria-Hungary,  the  peoples 
of  the  Balkans,  and  the  peoples  of  Turkey,  alike  in  Europe  and  in 
Asia,  from  the  impudent  and  alien  dominion  of  the  Prussian  military 
and  commercial  autocracy. 

We  owe  it,  however,  to  ourselves  to  say  that  we  do  not  wish  in 
any  way  to  impair  or  to  rearrange  the  Austro-Hungarian  Empire. 
It  is  no  affair  of  ours  what  they  do  with  their  own  life,  either  in- 
dustrially or  politically.  We  do  not  purpose  or  desire  to  dictate  to 
them  in  any  way.  We  only  desire  to  see  that  their  affairs  are  left 
in  their  own  hands,  in  all  matters,  great  or  small.  We  shall  hope  to 
secure  for  the  peoples  of  the  Balkan  peninsula  and  for  the  people  of 
the  Turkish  Empire  the  right  and  opportunity  to  make  their  own 
lives  safe,  their  own  fortunes  secure  against  oppression  or  injustice 
and  from  the  dictation  of  foreign  courts  or  parties. 

And  our  attitude  and  purpose  with  regard  to  Germany  herself  are 
of  a  like  kind.  We  intend  no  wrong  against  the  German  Empire, 
no  interference  with  her  internal  affairs.  We  should  deem  either 
the  one  or  the  other  absolutely  unjustifiable,  absolutely  contrary  to 
the  principles  we  have  professed  to  live  by  and  to  hold  most  sacred 
throughout  our  life  as  a  nation. 

The  people  of  Germany  are  being  told  by  the  men  whom  they  now 
permit  to  deceive  them  and  to  act  as  their  masters  that  they  are 
fighting  for  the  very  life  and  existence  of  their  Empire,  a  war  of 
desperate  self-defense  against  deliberate  aggression.  Nothing  could 
be  more  grossly  or  wantonly  false,  and  we  must  seek  by  the  utmost 
openness  and  candour  as  to  our  real  aims  to  convince  them  of  its 
falseness.  We  are  in  fact  fighting  for  their  emancipation  from  fear, 
along  with  our  own, — from  the  fear  as  well  as  from  the  fact  of 
unjust  attack  by  neighbours  or  rivals  or  schemers  after  world  empire. 
No  one  is  threatening  the  existence  or  the  independence  or  the  peace- 
ful enterprise  of  the  German  Empire, 

The  worst  that  can  happen  to  the  detriment  of  the  German  people 
is  this,  that  if  they  should  still,  after  the  war  is  over,  continue  to  be 
obliged  to  live  under  ambitious  and  intriguing  masters  interested  to 
disturb  the  peace  of  the  world,  men  or  classes  of  men  whom  the 
other  peoples  of  the  world  could  not  trust,  it  might  be  impossible 
to  admit  them  to  the  partnership  of  nations  which  must  henceforth 
guarantee  the  world's  peace.    That  partnership  must  be  a  partnership 


368        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

of  peoples,  not  a  mere  partnership  of  governments.  It  might  be 
impossible,  also,  in  such  untoward  circumstances,  to  admit  Germany 
to  the  free  economic  intercourse  which  must  inevitably  spring  out  of 
the  other  partnerships  of  a  real  peace.  But  there  would  be  no 
aggression  in  that;  and  such  a  situation,  inevitable  because  of  dis- 
trust, would  in  the  very  nature  of  things  sooner  or  later  cure  itself, 
by  processes  which  would  assuredly  set  in. 

The  wrongs,  the  very  deep  wrongs,  committed  in  this  war  will 
have  to  be  righted.  That  of  course.  But  they  cannot  and  must  not 
be  righted  by  the  commission  of  similar  wrongs  against  Germany 
and  her  allies.  The  world  will  not  permit  the  commission  of  similar 
wrongs  as  a  means  of  reparation  and  settlement.  Statesmen  must  by 
this  time  have  learned  that  the  opinion  of  the  world  is  everywhere 
wide  awake  and  fully  comprehends  the  issues  involved.  No  repre- 
sentative of  any  self-governed  nation  will  dare  disregard  it  by 
attempting  any  such  covenants  of  selfishness  and  compromise  as 
were  entered  into  at  the  Congress  of  Vienna.  The  thought  of  the 
plain  people  here  and  everywhere  throughout  the  world,  the  people 
who  enjoy  no  privilege  and  have  very  simple  and  unsophisticated 
standards  of  right  and  wrong,  is  the  air  all  governments  must  hence- 
forth breathe  if  they  would  live.  It  is  in  the  full  disclosing  light 
of  that  thought  that  all  policies  must  be  conceived  and  executed  in 
this  midday  hour  of  the  world's  life.  German  rulers  have  been  able 
to  upset  the  peace  of  the  world  only  because  the  German  people 
were  not  suffered  under  their  tutelage  to  share  the  comradeship  of 
the  other  peoples  of  the  world  either  in  thought  or  in  purpose.  They 
were  allowed  to  have  no  opinion  of  their  own  which  might  be  set 
up  as  a  rule  of  conduct  for  those  who  exercised  authority  over  them. 
But  the  congress  that  concludes  this  war  will  feel  the  full  strength  of 
the  tides  that  run  now  in  the  hearts  and  consciences  of  free  men 
everywhere.    Its  conclusions  will  run  with  those  tides. 

All  these  things  have  been  true  from  the  very  beginning  of  this 
stupendous  war;  and  I  cannot  help  thinking  that  if  they  had  been 
made  plain  at  the  very  outset  the  sympathy  and  enthusiasm  of  the 
Russian  people  might  have  been  once  for  all  enlisted  on  the  side  of 
the  Allies,  suspicion  and  distrust  swept  away,  and  a  real  and  lasting 
union  of  purpose  effected.  Had  they  believed  these  things  at  the 
very  moment  of  their  revolution  and  had  they  been  confirmed  in  that 
belief  since,  the  sad  reverses  which  have  recently  marked  the  progress 
of  their  affairs  towards  an  ordered  and  stable  government  of  free 
men  might  have  been  avoided.    The  Russian  people  have  been  poisoned 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     369 

by  the  very  same  falsehoods  that  have  kept  the  German  people  in 
the  dark,  and  the  poison  has  been  administered  by  the  very  same 
hands.  The  only  possible  antidote  is  the  truth.  It  cannot  be  uttered 
too  plainly  or  too  often. 

From  every  point  of  view,  therefore,  it  has  seemed  to  be  my  duty 
to  speak  these  declarations  of  purpose,  to  add  these  specific  inter- 
pretations to  what  I  took  the  liberty  of  saying  to  the  Senate  in  Jan- 
uary. Our  entrance  into  the  war  has  not  altered  our  attitude  towards 
the  settlement  that  must  come  when  it  is  over.  When  I  said  in  Jan- 
uary that  the  nations  of  the  world  were  entitled  not  only  to  free 
pathways  upon  the  sea  but  also  to  assured  and  unmolested  access  to 
those  pathways  I  was  thinking,  and  I  am  thinking  now,  not  of  the 
smaller  and  weaker  nations  alone,  which  need  our  countenance  and 
support,  but  also  of  the  great  and  powerful  nations,  and  of  our  pres- 
ent enemies  as  well  as  our  present  associates  in  the  war.  I  was 
thinking,  and  am  thinking  now,  of  Austria  herself,  among  the  rest, 
as  well  as  of  Serbia  and  of  Poland.  Justice  and  equality  of  rights 
can  be  had  only  at  a  great  price.  We  are  seeking  permanent,  not 
temporary,  foundations  for  the  peace  of  the  world  and  must  seek 
them  candidly  and  fearlessly.  As  always,  the  right  will  prove  to  be 
the  expedient. 

What  shall  we  do,  then,  to  push  this  great  war  of  freedom  and 
justice  to  its  righteous  conclusion?  We  must  clear  away  with  a 
thorough  hand  all  impediments  to  success  and  we  must  make  every 
adjustment  of  law  that  will  facilitate  the  full  and  free  use  of  our 
whole  capacity  and  force  as  a  fighting  unit. 

One  very  embarrassing  obstacle  that  stands  in  our  way  is  that  we 
are  at  war  with  Germany  but  not  with  her  allies.  I  therefore  very 
earnestly  recommend  that  the  Congress  immediately  declare  the 
United  States  in  a  state  of  war  with  Austria-Hungary.  Does  it  seem 
strange  to  you  that  this  should  be  the  conclusion  of  the  argument  I 
have  just  addressed  to  you?  It  is  not.  It  is  in  fact  the  inevitable 
logic  of  what  I  have  said.  Austria-Hungary  is  for  the  time  being  not 
her  own  mistress  but  simply  the  vassal  of  the  German  Government. 
We  must  face  the  facts  as  they  are  and  act  upon  them  without  senti- 
ment in  this  stern  business.  The  government  of  Austria-Hungary 
is  not  acting  upon  its  own  initiative  or  in  response  to  the  wishes  and 
feelings  of  its  own  peoples  but  as  the  instrument  of  another  nation. 
We  must  meet  its  force  with  our  own  and  regard  the  Central  Powers 
as  but  one.  The  war  can  be  successfully  conducted  in  no  other  way. 
The  same  logic  would  lead  also  to  a  declaration   of  war  against 


370        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Turkey  and  Bulgaria.  They  also  are  the  tools  of  Germany.  But 
they  are  mere  tools  and  do  not  yet  stand  in  the  direct  path  of  our 
necessary  action.  We  shall  go  wherever  the  necessities  of  this  war 
carry  us,  but  it  seems  to  me  that  we  should  go  only  where  immediate 
and  practical  considerations  lead  us  and  not  heed  any  others. 

The  financial  and  military  measures  which  must  be  adopted  will 
suggest  themselves  as  the  war  and  its  undertakings  develop,  but  I 
will  take  the  liberty  of  proposing  to  you  certain  other  acts  of  legis- 
lation which  seem  to  me  to  be  needed  for  the  support  of  the  war  and 
for  the  release  of  our  whole  force  and  energy. 

It  will  be  necessary  to  extend  in  certain  particulars  the  legislation 
of  the  last  session  with  regard  to  alien  enemies;  and  also  necessary, 
I  believe,  to  create  a  very  definite  and  particular  control  over  the 
entrance  and  departure  of  all  persons  into  and  from  the  United 
States. 

Legislation  should  be  enacted  defining  as  a  criminal  offense  every 
willful  violation  of  the  presidential  proclamations  relating  to  alien 
enemies  promulgated  under  section  4067  of  the  Revised  Statutes 
and  providing  appropriate  punishment;  and  women  as  well  as  men 
should  be  included  under  the  terms  of  the  acts  placing  restraints 
upon  alien  enemies.  It  is  likely  that  as  time  goes  on  many  alien 
enemies  will  be  willing  to  be  fed  and  housed  at  the  expense  of  the 
Government  in  the  detention  camps  and  it  would  be  the  purpose  of 
the  legislation  I  have  suggested  to  confine  offenders  among  them  in 
penitentiaries  and  other  similar  institutions  where  they  could  be 
made  to  work  as  other  criminals  do. 

Recent  experience  has  convinced  me  that  the  Congress  must  go 
further  in  authorizing  the  Government  to  set  limits  to  prices.  The 
law  of  supply  and  demand,  I  am  sorry  to  say,  has  been  replaced  by 
the  law  of  unrestrained  selfishness.  While  we  have  eliminated 
profiteering  in  several  branches  of  industry  it  still  runs  impudently 
rampant  in  others.  The  farmers,  for  example,  complain  with  a  great 
deal  of  justice  that,  while  the  regulation  of  food  prices  restricts  their 
incomes,  no  restraints  are  placed  upon  the  prices  of  most  of  the  things 
they  must  themselves  purchase;  and  similar  inequities  obtain  on  all 
sides. 

It  is  imperatively  necessary  that  the  consideration  of  the  full  use 
of  the  water  power  of  the  country  and  also  the  consideration  of  the 
systematic  and  yet  economical  development  of  such  of  the  natural 
resources  of  the  country  as  are  still  under  the  control  of  the  federal 
government  should  be  immediately  resumed  and  affirmatively  and 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     371 

constructively  dealt  with  at  the  earliest  possible  moment.  The  press- 
ing need  of  such  legislation  is  daily  becoming  more  obvious. 

The  legislation  proposed  at  the  last  session  with  regard  to  regu- 
lated combinations  among  our  exporters,  in  order  to  provide  for  our 
foreign  trade  a  more  effective  organization  and  method  of  coopera- 
tion, ought  by  all  means  to  be  completed  at  this  session. 

And  I  beg  that  the  members  of  the  House  of  Representatives  will 
permit  me  to  express  the  opinion  that  it  will  be  impossible  to  deal  in 
any  but  a  very  wasteful  and  extravagant  fashion  with  the  enormous 
appropriations  of  the  public  moneys  which  must  continue  to  be  made, 
if  the  war  is  to  be  properly  sustained,  unless  the  House  will  consent 
to  return  to  its  former  practice  of  initiating  and  preparing  all  appro- 
priation bills  through  a  single  committee,  in  order  that  responsibility 
may  be  centred,  expenditures  standardized  and  made  uniform,  and 
waste  and  duplication  as  much  as  possible  avoided. 

Additional  legislation  may  also  become  necessary  before  the  pres- 
ent Congress  again  adjourns  in  order  to  effect  the  most  efficient  coor- 
dination and  operation  of  the  railway  and  other  transportation  sys- 
tems of  the  country;  but  to  that  I  shall,  if  circumstances  should 
demand,  call  the  attention  of  the  Congress  upon  another  occasion. 

If  I  have  overlooked  anything  that  ought  to  be  done  for  the  more 
effective  conduct  of  the  war,  your  own  counsels  will  supply  the 
omission.  What  I  am  perfectly  clear  about  is  that  in  the  present 
session  of  the  Congress  our  whole  attention  and  energy  should  be 
concentrated  on  the  vigorous,  rapid,  and  successful  prosecution  of  the 
great  task  of  winning  the  war. 

We  can  do  this  with  all  the  greater  zeal  and  enthusiasm  because 
we  know  that  for  us  this  is  a  war  of  high  principle,  debased  by  no 
selfish  ambition  of  conquest  or  spoliation;  because  we  know,  and  all 
the  world  knows,  that  we  have  been  forced  into  it  to  save  the  very 
institutions  we  live  under  from  corruption  and  destruction.  The 
purposes  of  the  Central  Powers  strike  straight  at  the  very  heart  of 
everything  we  believe  in;  their  methods  of  warfare  outrage  every 
principle  of  humanity  and  of  knightly  honour;  their  intrigue  has 
corrupted  the  very  thought  and  spirit  of  many  of  our  people;  their 
sinister  and  secret  diplomacy  has  sought  to  take  our  very  territory 
away  from  us  and  disrupt  the  Union  of  the  States.  Our  safety 
would  be  at  an  end,  our  honour  forever  sullied  and  brought  into 
contempt  were  we  to  permit  their  triumph.  They  are  striking  at 
the  very  existence  of  democracy  and  liberty. 

It  is  because  it  is  for  us  a  war  of  high,  disinterested  purpose,  in; 


372        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

which  all  the  free  peoples  of  the  world  are  banded  together  for  the 
vindication  of  right,  a  war  for  the  preservation  of  our  nation  and 
of  all  that  it  has  held  dear  of  principle  and  of  purpose,  that  we  feel 
ourselves  doubly  constrained  to  propose  for  its  outcome  only  that 
which  is  righteous  and  of  irreproachable  intention,  for  our  foes  as 
well  as  for  our  friends.  The  cause  being  just  and  holy,  the  settle- 
ment must  be  of  like  motive  and  quality.  For  this  we  can  fight, 
but  for  nothing  less  noble  or  less  worthy  of  our  traditions.  For 
this  cause  we  entered  the  war  and  for  this  cause  will  we  battle  until 
the  last  gun  is  fired. 

I  have  spoken  plainly  because  this  seems  to  me  the  time  when  it 
is  most  necessary  to  speak  plainly,  in  order  that  all  the  world  may 
know  that  even  in  the  heat  and  ardour  of  the  struggle  and  when  our 
whole  thought  is  of  carrying  the  war  through  to  its  end  we  have  not 
forgotten  any  ideal  or  principle  for  which  the  name  of  America  has 
been  held  in  honour  among  the  nations  and  for  which  it  has  been 
our  glory  to  contend  in  the  great  generations  that  went  before  us. 
A  supreme  moment  of  history  has  come.  The  eyes  of  the  people 
have  been  opened  and  they  see.  The  hand  of  God  is  laid  upon  the 
nations.  He  will  show  them  favour,  I  devoutly  believe,  only  if  they 
rise  to  the  clear  heights  of  His  own  justice  and  mercy. 


3.  WAR  WITH  THE  IMPERIAL  AND  ROYAL  AUSTRO- 
HUNGARIAN  GOVERNMENT. 

Mr.  Flood,  from  the  Committee  on  Foreign  Affairs,  submitted  the 
following  report: 

The  Committee  on  Foreign  Affairs,  to  which  was  referred  the  joint 
resolution  (H.  J.  Res.  169)  declaring  that  a  state  of  war  exists  be- 
tween the  Imperial  and  Royal  Austro-Hungarian  Government  and 
the  Government  and  people  of  the  United  States  and  making  provi- 
sion to  prosecute  the  same,  having  had  the  same  under  consideration, 
reports  it  back  with  amendment,  and  recommends  that  the  resolution, 
as  amended,  do  pass.   .    .    . 

The  President  has  asked  for  the  declaration  that  a  state  of  war 
exists  against  Austria-Hungary. 

In  his  address,  delivered  at  the  joint  session  of  the  two  Houses 
of  Congress  on  December  4,  he  uses  this  language : 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      373 

One  very  embarrassing  obstacle  that  stands  in  our  way  is  that 
we  are  at  war  with  Germany,  but  not  with  her  allies.  I  therefore 
very  earnestly  recommend  that  the  Congress  immediately  declare 
the  United  States  in  a  state  of  war  with  Austria-Hungary. 

The  accompanying  resolution  carries  out  this  recommendation  of 
the  President. 

The  enactment  of  this  declaration  involved  very  little  readjustment 
of  the  affairs  between  the  United  States  and  Austria-Hungary,  be- 
cause a  state  of  war  which  this  declaration  declares  to  exist  actually 
has  been  a  fact  for  many  months.  The  depredations  on  American 
lives  and  rights  by  Austrian  naval  forces  have  been  small  compared 
with  that  of  Germany,  but  they  have  been  indulged  in  to  an  extent 
to  constitute  war  upon  this  country,  and  this  fact,  taken  in  connec- 
tion with  other  acts  of  Austria-Hungary,  has  more  and  more  brought 
that  Government  into  a  position  where  the  American  people  have 
realized  that  she  must  be  included  with  Germany  as  an  enemy. 

ACTIVITIES  OF  AUSTRIAN  AMBASSADOR  AND  CONSULS 

In  September,  1915,  it  was  discovered  that  Ambassador  Dumba 
and  Austrian  consuls  in  St.  Louis  and  elsewhere  were  implicated  in 
instigating  strikes  in  American  manufacturing  plants  engaged  in  the 
production  of  munitions  of  war.  An  American  citizen  named  Archi- 
bald, traveling  under  an  American  passport,  had  been  intrusted  with 
dispatches  in  regard  to  this  matter  from  Dumba  and  Bernstorff  to 
their  Governments.  These  acts  were  admitted  by  Dumba.  By  rea- 
son of  the  admitted  purpose  and  intent  of  Dumba  to  conspire  to 
cripple  business  industries  in  the  United  States,  and  by  reason  of 
the  flagrant  violation  of  diplomatic  propriety  in  employing  an 
American  citizen  protected  by  an  American  passport  as  a  secret 
bearer  of  official  dispatches  through  the  lines  of  an  enemy  of  Austria- 
Hungary,  the  Austro-Hungarian  Government  was  requested  to  recall 
Dumba. 

The  Austrian  consuls  at  St.  Louis  and  New  York  were  implicated 
with  Dumba  in  these  transactions,  particularly  in  the  circulation  of 
strike  propaganda.  They  were  implicated  in  procuring  forged  pass- 
ports from  the  United  States  for  the  use  of  their  countrymen  in 
going  home. 

Long  before  the  above  activities  were  made  public,  our  Govern- 
ment had  evidence  that  the  Austrian  diplomatic  and  consular  service 
was  being  used  in  this  country  for  Germany 's  warlike  purposes. 


374        A  SURVEY  OF  INTERNATIONAL  RELATIONS 


AUSTRIA  S  POSITION  AS  TO  SUBMARINE  WARFARE 

While  Austria's  submarine  warfare  has  been  of  a  very  limited 
character,  they  have  adopted  and  adhered  to  the  policy  of  the  ruth- 
less submarine  warfare  of  the  Imperial  German  Government. 

After  diplomatic  relations  with  Germany  had  been  broken,  the 
department  on  February  14,  1917,  dispatched  the  following  telegram 
to  the  American  embassy  at  Vienna,  surveying  briefly  the  position  of 
the  Austrian  Government  on  submarine  warfare : 

In  the  American  note  of  December  6,  1915,  to  the  Austro- 
Hungarian  Government  in  the  Ancona  case,  this  Government 
called  attention  to  the  views  of  the  Government  of  the  United 
States  on  the  operations  of  submarines  in  naval  warfare  which 
had  been  expressed  in  no  uncertain  terms  to  the  ally  of  Austria- 
Hungary,  and  of  which  full  knowledge  on  the  part  of  the  Austro- 
Hungarian  Government  was  presumed.  In  its  reply  of  December 
15,  1915,  the  Imperial  and  Royal  Government  stated  that  it  was 
not  possessed  with  authentic  knowledge  of  all  of  the  pertinent 
correspondence  of  the  United  States,  nor  was  it  of  the  opinion 
that  such  knowledge  would  be  sufficient  to  cover  the  Ancona  case, 
which  was  of  essentially  a  different  character  from  those  under 
discussion  with  the  Berlin  Government.  Nevertheless,  in  reply  to 
the  American  note  of  December  19,  1915,  the  Austro-Hungarian 
Government,  in  its  note  of  December  29,  stated : 

"As  concerns  the  principle  expressed  in  the  very  esteemed  note 
that  hostile  private  ships,  in  so  far  as  they  do  not  flee  or  offer 
resistance,  may  not  be  destroyed  without  the  persons  on  board 
having  been  placed  in  safety,  the  Imperial  and  Royal  Government 
is  able  substantially  to  assent  to  this  view  of  the  Washington 
Cabinet." 

Moreover,  in  the  case  of  The  Persia,  the  Austro-Hungarian  Gov- 
ernment, in  January,  1916,  stated  in  effect  that  while  it  had  received 
no  information  with  regard  to  the  sinking  of  The  Persia,  yet,  in  case 
its  responsibility  were  involved,  the  Government  would  be  guided  by 
the  principles  agreed  to  in  the  Ancona  case. 

Within  one  month  thereafter,  the  Imperial  and  Royal  Gov- 
ernment, coincidently  with  the  German  declaration  of  February 
10,  1916,  on  the  treatment  of  armed  merchantmen  announced 
that  "All  merchant  vessels  armed  with  cannon  for  whatever  pur- 
pose, by  this  very  fact  lose  the  character  of  peaceable  vessels," 
and  that,  "Under  these  conditions  orders  have  been  given  to 
Austro-Hungarian  naval  forces  to  treat  such  ships  as  belligerent 
vessels. ' ' 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      375 

In  accordance  with  this  declaration  several  vessels  with  Ameri- 
cans on  board  have  been  sunk  in  the  Mediterranean,  presumably 
by  Austrian  submarines,  some  of  which  were  torpedoed  without 
warning  by  submarines  flying  the  Austrian  flag,  as  in  the  cases 
of  the  British  steamers  Secondo  and  Welsli  Prince.  Inquiries 
made  through  the  American  ambassador  at  Vienna  as  to  these 
cases  have  so  far  elicited  no  information  and  no  reply. 

Again,  on  January  31,  1917,  coincidently  with  the  German 
declaration  of  submarine  danger  zones  in  waters  washing  the 
coasts  of  the  entente  countries,  the  Imperial  and  Royal  Govern- 
ment announced  to  the  United  States  Government  that  Austria- 
Hungary  and  its  allies  would  from  February  1  "prevent  by  every 
means  any  navigation  whatsoever  within  a  definite  closed  area." 

From  the  foregoing  it  seems  fair  to  conclude  that  the  pledge 
given  in  the  Ancona  case  and  confirmed  in  the  Persia  case  is 
essentially  the  same  as  that  given  in  the  note  of  the  Imperial 
German  Government  dated  May  4,  1916,  viz.,  "In  accordance  with 
the  general  principles  of  visit  and  search  and  destruction  of 
merchant  vessels  recognized  by  international  law,  such  vessels, 
both  within  and  without  the  area  declared  as  a  naval  war  zone, 
shall  not  be  sunk  without  warning  and  without  saving  human 
lives,  unless  these  ships  attempt  to  escape  or  olBfer  resistance," 
and  that  this  pledge  has  been  modified  to  a  greater  or  less  extent 
by  the  declarations  of  the  Imperial  and  Royal  Government  of 
February  10,  1916,  and  January  31,  1917.  In  view,  therefore,  of 
the  uncertainty  as  to  the  interpretation  to  be  placed  upon  those 
declarations,  and  particularly  this  latter  declaration,  it  is  impor- 
tant that  the  United  States  Government  be  advised  definitely  and 
clearly  of  the  attitude  of  the  Imperial  and  Royal  Government  in 
regard  to  the  prosecution  of  submarine  warfare  in  these  circum- 
stances. 

Please  bring  this  matter  orally  to  the  attention  of  the  Aus- 
trian Government  and  request  to  be  advised  as  to  whether  the 
pledge  given  in  the  Ancona  and  Persia  cases  is  to  be  interpreted 
as  modified  or  withdrawn  by  the  declarations  of  February  10, 
1916,  and  January  31,  1917.  If  after  your  conversation  it  seems 
advisable,  you  may  hand  to  the  Minister  for  Foreign  Affairs  a 
paraphrase  of  this  instruction,  leaving  the  quoted  texts  verbatim. 

In  reply,  the  Austrian  Government,  in  an  aide  memoire  of  March 
2,  1917,  after  reviewing  the  illegal  blockade  measures  of  the  allies, 
stated  that  "it  now  as  heretofore  firmly  adheres  to  the  assurances 
given  by  it"  in  the  Ancona  case. 

The  Austro-Hungarian  Government  also  stated  that  Austro-Hun- 
garian  submarines  had  taken  no  part  in  the  sinking  of  the  British 
steamers  Secorido  and  Welsli  Prince,  and  that  "the  assurance  which 
it  gave  the  Washington  Cabinet  in  the  Ancona  ease,  and  renewed  in 


376      A   SURVEY    OF    INTERNATIONAL   RELATIONS 

the  Persia  case,  has  neither  been  withdrawn  or  restricted  by  its  decla- 
rations of  February  10,  1916,  and  January  31,  1917." 

The  Austro-Hungarian  note  endeavors,  through  a  legal  argument, 
to  show  consistency  between  these  assurances  and  its  declarations. 
In  this  way  the  Austro-Hungarian  Government  evades  a  direct  an- 
swer to  the  American  inquiry,  but  in  its  argument  it  substantially 
adheres  to  the  declaration  of  January  31,  1917,  for  it  states  that — 

The  entire  declaration  is  essentially  nothing  else  than  a  warn- 
ing to  the  effect  that  no  merchant  ship  may  navigate  the  sea 
zones  accurately  defined  in  the  declaration. 

and  that — 

The  Imperial  and  Royal  Government  is,  however,  unable  to 
accept  a  responsibility  for  the  loss  of  human  lives  which,  never- 
theless, may  result  from  the  destruction  of  armed  ships  or  ships 
encountered  in  the  closed  zones. 

In  view  of  this  acceptance  and  avowal  by  the  Austrian  Govern- 
ment of  the  policy  which  had  led  to  a  breach  of  relations  between  the 
United  States  and  Germany,  the  Government  of  the  United  States 
found  it  impossible  to  receive  Dumba's  successor,  Count  TarnowsM. 
The  Government  felt  that  it  could  not  receive  a  new  ambassador  from 
a  country  which  joined  Germany  in  her  submarine  policy,  even 
though  its  participation  might  be  by  verbal  and  not  physical  coopera- 
tion. This  was  communicated  to  the  Austrian  Government  in  a 
telegram  from  the  department  dated  March  28,  1917. 

In  his  message  to  Congress  of  April  2,  1917,  the  President  said, 
in  respect  to  the  attitude  of  Austria-Hungary: 

I  have  said  nothing  of  the  Governments  allied  with  the  Im- 
perial Government  of  Germany  because  they  have  not  made  war 
upon  us  or  challenged  us  to  defend  our  right  and  our  honor.  The 
Austro-Hungarian  Government  has,  indeed,  avowed  its  unquali- 
fied indorsement  and  acceptance  of  the  reckless  and  lawless  sub- 
marine warfare  adopted  now  without  disguise  by  the  Imperial 
German  Government,  and  it  has  therefore  not  been  possible  for 
this  Government  to  receive  Count  Tarnowski,  the  Ambassador 
recently  accredited  to  this  Government  by  the  Imperial  and  Royal 
Government  of  Austria-Hungary;  but  that  Government  has  not 
actually  engaged  in  warfare  against  citizens  of  the  United  States 
on  the  seas,  and  I  take  the  liberty,  for  the  present  at  least,  of 
postponing  a  discussion  of  our  relations  with  the  authorities  at 
Vienna.  We  enter  this  war  only  where  we  are  clearly  forced  into 
it  because  there  are  no  other  means  of  defending  our  rights. 


BETWEEN  THE  UNITED  STATES  AND  GERMANY      377 

The  Austrian  note  of  January  31,  1917,  proclaimed  the  same  sub- 
marine policy  as  that  of  Germany,  and  officially  announced  her  in- 
tention, if  she  saw  fit,  to  pursue  the  same  ruthless  submarine  policy 
that  Germany  had  inaugurated. 

Many  vessels  have  been  sunk  by  submarines  in  the  Mediterranean 
; — the  area  in  which  Austrian  submarines  operate — by  submarines 
which  carried  no  flag  or  mark  and  the  nationality  of  which  was 
unknown.  A  great  many  of  these  undersea  craft  are  believed  to 
have  been  Austrian  submarines  or  submarines  commanded  by  Aus- 
trian officers,  or  supplied  from  Austrian  bases  or  by  Austrian  means. 

On  April  4,  1917,  the  American  four-masted  schooner  Marguerite 
was  sunk  by  a  submarine  35  miles  from  the  coast  of  Sardinia,  while 
en  route  to  Spain.  The  submarine  carried  no  flag  or  marks  to  indi- 
cate its  nationality.  It  is  known,  however,  that  Austrian  was  the 
language  spoken  by  the  officer  of  the  submarine  who  came  aboard 
the  vessel  with  the  boarding  party,  and  it  is  believed  that  the  sub- 
marine was  Austrian. 

On  November  21,  1917,  the  Schuylkill  was  sunk  off  the  coast  of 
Algeria  by  an  Austrian  submarine ;  thus  Austria  is  making,  whenever 
opportunity  affords,  the  same  ruthless  submarine  warfare  that  Ger- 
many is  making,  in  disregard  of  the  promises  made  this  Government, 
in  violation  of  the  law  of  nations  and  the  instincts  of  humanity, 
and  is  as  much  at  war  with  this  country  as  Germany  was  after  her 
note  of  January  31,  1917,  and  the  subsequent  sinking  of  American 
ships  and  the  drowning  of  American  citizens. 


SEVERANCE  OF  DIPLOMATIC  RELATIONS  BY  AUSTRIA-HUNGARY 

Before  war  was  declared  to  exist  between  the  United  States  and 
the  Imperial  German  Government,  it  was  intimated  to  the  United 
States  Government  that  if  war  should  be  declared  by  the  United 
States  upon  Germany,  Austria-Hungary  would  be  under  obligation 
to  break  off  diplomatic  relations  with  the  United  States.  Conse- 
quently after  the  declaration  of  war  of  April  6,  1917,  the  Austro- 
Hungarian  Government  informed  the  American  charge  at  Vienna 
on  April  8  that  diplomatic  relations  between  the  United  States  and 
Austria-Hungary  were  broken  and  handed  him  passports  for  him- 
self and  members  of  the  embassy.  The  following  is  a  translation 
of  the  note  handed  to  the  American  charge  by  the  Austrian  min- 
ister for  foreign  affairs: 


378        A  SURVEY  OF  INTERNATIONAL  RELATIONS 

Imperial  and  Royal  Ministry  of  the 
Imperial  and  Royal  House  ai<d  of  Foreign  Affairs, 

Vienna,  April  8,  1917. 
Since  the  United  States  of  America  has  declared  that  a  state 
of  war  exists  between  it  and  the  Imperial  German  Government, 
Austria-Hungary,  as  ally  of  the  German  Empire,  has  decided 
to  break  off  the  diplomatic  relations  with  the  United  States,  and 
the  imperial  and  royal  embassy  in  "Washington  has  been  in- 
structed to  inform  the  Department  of  State  to  that  effect. 

While  regretting  under  these  circumstances  to  see  a  termina- 
tion of  the  personal  relations  which  he  has  had  the  honor  to  hold 
with  charge  d'affaires  of  the  United  States  of  America,  the  under- 
signed does  not  fail  to  place  at  the  former's  disposal  herewith 
the  passport  for  the  departure  from  Austria-Hungary  of  him- 
self and  the  other  members  of  the  embassy. 

At  the  same  time  the  undersigned  avails  himself  of  the  oppor- 
tunity to  renew  to  the  charge  d'affaires  the  expression  of  his 
most  perfect  consideration. 

Czernin. 
To  Mr.  Joseph  Clark  Grew, 
Charge  d' Affaires  of  the  United  States  of  America. 

AUSTRO-GERMAN  operations  against  ITALY 

Until  the  present  Austro-German  drive  in  northern  Italy,  the 
Austrian  forces  were  gradually  being  driven  back  by  the  forces  of 
the  Italian  armies.  With  the  assistance  of  German  troops  drawn 
from  the  Russian  front,  a  very  serious  catastrophe  was  inflicted  upon 
the  Italian  arms,  which  if  it  had  not  been  stemmed  might  have  re- 
sulted in  the  total  collapse  of  Italy.  Such  a  result  would  have  been 
a  great  blow  to  those  with  whom  we  are  associated  in  this  war,  and 
as  much  to  the  United  States  as  to  any  of  her  cobelligerents. 

As  a  result  of  this  situation  the  Allies  have  rushed  aid  to  Italy, 
and  the  United  States  is  sending  ships,  money,  and  supplies,  and 
will  probably  soon  send  troops,  who  will  be  facing  and  making  war 
on  Austrian  soldiers,  and  before  this  takes  place  there  should  be  a 
declaration  of  war,  this  country  against  Austria-Hungary, 

The  Italian  situation  is  of  the  utmost  importance  in  the  present 
conduct  of  the  war.  A  declaration  of  war  by  the  United  States 
against  Austria-Hungary  will  hearten  the  people  of  Italy,  who  have 
been  misled  by  the  mischievous  and  deluding  propaganda  engineered 
by  the  Germans.  It  will  strengthen  from  a  military  point  of  view 
the  whole  allied  cause.  These  are  strong  reasons  for  a  declaration 
of  war  against  Austria-Hungary. 

These  considerations,  and  the  fact  that  Austria-Hungary  is  adher- 


BETWEEN  THE  UNITED  STATES  AND  GERMANY     379 

ing  to  the  illegal  and  inhumane  policy  of  ruthless  submarine  warfare, 
and  is,  as  the  committee  believes,  making  war  upon  American  vessels 
and  American  citizens  upon  the  high  seas,  and  other  reasons  which 
are  not  deemed  necessary  to  recapitulate  here,  induced  the  committee 
to  report  unanimously  the  accompanying  resolution  declaring  that 
a  state  of  war  exists  between  the  Imperial  and  Royal  Austro- 
Hungarian  Government  and  the  Government  and  people  of  the  United 
States  and  making  provision  to  prosecute  the  same. 

The  action  of  the  committee  was  unanimous,  and  it  trusts  that  the 
resolution  will  be  adopted  unanimously  by  the  House. 


4.  JOINT  RESOLUTION  DECLARING  THAT  A  STATE  OP 
WAR  EXISTS  BETWEEN  THE  IMPERIAL  AND  ROYAL 
AUSTRO-HUNGARIAN  GOVERNMENT  AND  THE  GOVERN- 
MENT AND  THE  PEOPLE  OF  THE  UNITED  STATES,  AND 
MAKING  PROVISION  TO  PROSECUTE  THE  SAME. 

Whereas  the  Imperial  and  Royal  Austro-Hungarian  Govern- 
ment has  committed  repeated  acts  of  war  against  the  Government 
and  people  of  the  United  States  of  America :  Therefore  be  it 

Resolved  hy  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  a  state 
of  war  is  hereby  declared  to  exist  between  the  United  States  of 
America  and  the  Imperial  and  Royal  Austro-Hungarian  Govern- 
ment; and  that  the  President  be,  and  he  is  hereby,  authorized 
and  directed  to  employ  the  entire  naval  and  military  forces  of 
the  United  States  and  the  resources  of  the  Government  to  carry  on 
war  against  the  Imperial  and  Royal  Austro-Hungarian  Govern- 
ment ;  and  to  bring  the  conflict  to  a  successful  termination  all  the 
resources  of  the  country  are  hereby  pledged  by  the  Congress  of 
the  United  States. 

Champ  Clark, 
Speaker  of  the  House  of  Representatives, 

Thos.  R.  Marshall, 
Yice  President  of  the  United  States  and 

President  of  the  Senate. 

Approved,  December  7,  1917, 
WooDROw  Wilson. 


INDEX 


Abeken,  Privy  Councillor,  xliv,   10 

Acteon,  The  (cited),  245 

Acton,  Lord    (cited),  xxiii 

Adriatic,  The,  17,  26 

^gean.  The,  18,  20,  22,  26 

Africa,  18,  23 

Alexander  II,  Czar  of  Russia,  13-16 

Alabama,  The  (Federal  cruiser),  81 

Alabama,  The  (Confederate  cruiser), 
127,   241,   337 

Alabama  Claims,  313,  337 

Alabama  Claims,  Court  of,  338,  339 

Albert,  Dr.,  Violation  of  American 
neutrality  by,  308 

Alleganean,  The    (cited),  343 

Allen,  Geo.  W.    (cited),  239 

Alsace-Lorraine,    17,    18 

Ambrose   Channel   Light,    112 

American  trade.    See  Foodstuffs. 

Americans,  Arrest  of,  on  neutral  ves- 
sels, 66-73 

Ancona,  The,  Sinking  of,  374-375 

Annie  Larsen,  chartered  to  carry  arms 
to  India,  308 

Antelope,  The    (cited),  220 

Arabic,  The,  Attack  on,  168-169,  302 

Arbitral  court,  319-320 

Arbitration,  29,  311-325,  331;  cases, 
313;    treaties,   321 

Archer,  The   (cited),  127 

Archibald,  James  J.  F.,  Passport  frauds 
by,  306 

Argentina,  321 

Arizona,  310 

Ariel,   The    (cited),  241 

Armed  merchantmen,  correspondence 
concerning  status  of,  216-264; 
American  circular,  249-250; 
American  rules,  250;  British 
notes,  248-260;  American  pro- 
posal for  agreement  as  to,  258- 
260;  German  decrees  relative  to, 
261-262;  American  procl;  nation 
of  armed  neutrality,  296-298; 
reply  of  Allied  powers,  360 

Armed  neutrality,  296-297 

Armed  neutrality,  American  proclama- 
tion on,  296-297 

Armenian,  The,  Sinking  of,  301 

Arms  and  munitions.  See  Munitions 
of  war. 

Arndt,  Ernst  M.  (cited),  xli,  194- 
195 


S81 


Arrest   of  Americans   on  neutral  ves- 
sels,   72;     August    Piepenbrink, 
67 
Asia,  18 

Atlas  Steamship  Company,  307 
Attacks  on  ships,  301-304;  374-377 
Austria,  2-6,  11,  17-22;  ultimatum  to 
Denmark  (1864),  3;  ultimatum 
to  Servia  and  reply,  26-36;  re- 
fused Servia's  offer  to  arbitrate, 
27;  declared  war  on  Servia,  28, 
36;  informs  Italy  of  intention 
to  attack  Servia  (1913),  42; 
declaration  of  war  by  the 
United  States  against,  364-379. 
See  also  Submarine  warfare. 

Babylonia,  23 

Bacon,  George  Voux,  306 

Bagdad  Railway,  22,  23 

Baltic,    The,   211,   344 

Balkans,  18,  21 

Balkan  War   (1912),  21,  42 

Balkan  War  (1913),  22;  Austria  in- 
formed Italy  of  intention  to  pro- 
ceed against  Servia,  42 

Bancroft  Treaty,  67 

Barboux    (cited),  237 

Beernaert,  Auguste,  191 

Belgian  Relief  Commission,  303-304 

Belgium,  23,  28,  29,  184,  190,  193, 
303,  326;  invasion  discussed  in 
1911,  191-192 

Belligerent  ships,  violations  of  neu- 
trality by,  110-116 

Benedetti,  Vincent  Count  de,  French 
Ambassador  to  Prussia,  xlv-xlvi, 
9-12,  334 

Benedictus  XV,  American  answer  to 
Peace  appeal  of,  361-363 

Berlin  Congress  of,   19,  21 

Bermuda,  The   (cited),  85,  89 

Bernhardi,  Friedrich  von  (cited),  xcii- 
cxii 

Bernstorff,  Count  von   (1871),  238 

Bernstorff,    Count    von,    German    Am- 
bassador  to   the   United   States, 
308,   309 
See  Germany. 

Berwindale,  The,  Sinking  of,  302 

Bethmann-Holhceg,  Theobald,  cxiv,  184, 
192.    See  also  Germany. 

Beyens,  Baron,  192 


382 


INDEX 


Bieberstein,  Baron  Marschall  von,  Ger- 
man delegate  to  Hague  Confer- 
ence, 210,  321-324 

Bismarck,  Herbert  Count  von,  195 

Bismarck,  Otto  Count  von  (cited), 
xliii-xlvii,  1,  21,  195,  238,  317, 
334,  335 

Black  Sea,  18,  344;  Russia  assumed 
control,  21 

Blatchford  Prize  Cases  (cited),  226 

Blockades,  205-215;  American  procla- 
mation of  1862  declaring  block- 
ade, 80;  German  decree  and 
memorandum,  136-149;  North 
Sea  declared  war  zone,  161 ; 
British  Note  and  Orders  in 
Council,  210-215 

Bluntschli,  Johann  Caspar  (cited), 
xlviii-1,  180,  268-270 

Boer  War,  101,  105-106 

Bohemia,  12 

Bolles,  John  A.   (cited),  238-240 

Bopp,  Franz,  German  Consul-General 
at  San  Francisco,  307 

Borcke,  von,  xxix 

Bosnia,  by  treaty  of  Berlin  to  be  ad- 
ministered by  Austria,  19;  an- 
nexed by  Austria,  20,  21 

Boxer  Rebellion,  78 

Boy-Ed,  Captain,  306 

Brincken,  George  Wilhelm  Baron,  307 

Bryan,  William  J.,  American  Secretary 
of  State,  March  4,  1913  to  June 
9,  1915,  253,  323 

Bryan  treaties,  323,  324 

Buffon,  Henri  Nadault  de,  xxiii 

Bulgaria,  King  of,  19-22 

Bulmerincq,  August  von  (cited),  269- 
270 

Bulow,  von,  192,  318,  320 

Bynkershoek,  345,  346 

Cables,  Censorship  of,  57-59 

Canal  Zone,  Panama.  See  Panama 
Canal  Zone. 

Canary   Islands,   Cutting  of   cable,    57 

Cape  Argus,   The,   Sinking  of,   242 

Caroline  Islands,  317 

Carranza,  General,  309 

Cass,  Lewis,  American  Secretary  of 
State,   1860,   147,   198 

Catharina  Elizabeth,  The  (cited),  276 

Censorship,  57-65 

Chakrabarty,  Dr.,  Violation  of  Ameri- 
can neutrality,  305 

Charles,  King  of  Roumania,  9,  335 

Charles  X,  King  of  Sweden,  xxxi 

Charles  XII,  King  of  Sweden,  xxxi 

Charlotte,  The   (cited),  238 

Chase,  Salmon  P.,  Chief  Justice  of 
United   States,   85,   87 


Chiala   (cited),  195 

China,  The,  Removal  of  enemy  subjects 
from  The  Laurentic,  70,  71 

Choate,  Joseph  H.,  American  delegate 
Hague  Peace  Conference,  1907, 
322 

Chihuahua,  Mexico,  309 

Christian,  Prince  of  Denmark,  3 

Churchill,  Winston,  247,  248 

Citizenship,   116,   117 

Citizenship,  Case  of  August  Piepen- 
brink,  66-69 

Civil  War,  American,  313,  336 

Clarence,  The  (cited),  127 

Clark,  Champ,  xxii,  379 

Clausewitz,  Karl  von  ( cited ) ,  xxxix-xli 

Coaling  of  warships  in  Panama  Zone, 
128-130;  attitude  of  Great 
Britain  at  Hague  Conference, 
1907,  51 

Coburg,  House  of,  20 

Coleridge,  Lord  Chief  Justice  of  Eng- 
land, 196 

Commercen,  The   (cited),  88 

Commission,  Belgian  Relief,  303 

Commission  of  Inquiry,  327 

Communipaw,    The,    Attack    on,    302 

Cond4,  The.  August  Piepenbrink  re- 
moved to,  67,  70 

Confederacy,  68 

Congress    of    Berlin,     1878,     19,    21 

Congress  of  Vienna,  1815,  2 

Congress  of  Paris,  1856,  21 

Constantinople,  17,  18,  19 

Contraband,  German,  French,  British 
decrees  relative  to,  74-77;  Hague 
Conventions  on,  74;  Declaration 
of  London,  75;  list  issued  by 
Secretary  of  Treasury  of  United 
States,  May  23,  1862,  and 
American  proclamations  of 
April  29,  June  15  and  June  24 
(1865),  77-78 

Convention  for  Pacific  Settlement  of 
International  Disputes,  314,  329 

Conversion  of  merchant  vessels,  247 

Copper,  Contraband,  77-79 

Cornell,  Margaret  U.,   Mrs.,  307 

Cotton,  Declaration  of  Great  Britain 
(August  23,  1915),  of  Germany 
(July  22,  1916),  91 

Court  of  arbitral  justice,  314-319 

Crimean  War,  5,  99,  246 

Crispi,  195 

Cupenberg,  Baron  von,  306 

Cushing,  The,  Attack  on,  150,  301 

Cushing  vs.  United  States,  225-226 

Czar  of  Russia,  316 

Daeche,  Paul,  307 
Dalmatia,  17 


INDEX 


383 


Dana,  Richard  H.   (cited),  88,  266 

Dana's  Wheaton,  88,  266 

Dardanelles,  The,  17 

Darmstadt,  Princess  of,  xxviii 

Davignon,  M.,  Belgian  Minister  for 
Foreign  Affairs,  191,  192 

De  Boeck  (cited),  228 

Declaration  of  London,  Orders  and  de- 
crees, etc.,  50,  68,  74-77,  130- 
132,  137,  138,  243,  274,  328, 
331-333;  Germany  and  Allies 
willing,  but  Great  Britain  and 
Allies  unwilling  to  accept,  77 ; 
failure  of  United  States  to  pro- 
test against  British  modifica- 
tions, 130-131 

Declaration  of  Paris,  53,  93,  137, 
220-225,  247;  Great  Britain  de- 
nied binding  force  as  to  the 
United  States,  53 

Declaration  of  St.  Petersburg,  xlviii 

Declaration  of  war,  American  against 
Germany,  xxi,  xxii,  298-310; 
against  Austria-Hungary,  379 

Declarations  of  war    (1914-1917),  cxv 

Delbriick,  Martin  Friedrich  Rudolf  von, 
335 

Denmark,  2,  4;  ultimatum  sent  by 
Austria  (1864),  3 

Department  of  State  War  Relief  Com- 
mittee, vi 

Depretis,  Augustin,  Italian  Minister  of 
Foreign  Affairs,  1882,  195 

Desaix,  The   (cited),  224,  237 

Destruction  of  prizes.     See  Prizes. 

Detention  camps,  119-120 

Deutschland,  The,  251 

Diplomatic  Relations  between  the 
United  Statea  and  Germany 
severed,  295-297;  between  the 
United  States  and  Austria,  378 

Draper,  Judge,  343 

Dual  Alliance,  Text  of,  25 

Dumba,  Constantin  Theodor,  Austrian 
Ambassador,  Recall  of,  306,  373 

Dumont,  J.   (cited),  267-268 

Diundum  bullets.  Sale  of,  106-110; 
Hague  Conventions  relative  to, 
109;  protest  of  Germany  against 
use,  107 

Dutch  Gueldre,  xxiv 


Eagle  Point,  The,  Sinking  of,  303 
Edward  VII,  King  of  England,  25 
Eitel  Friedrich,  The,  255 
Elsebe,  The  (cited),  235 
Emden,  The,  255 
Ems  telegram,  xliv-xlvi,  9-12 
Endymion,  The   (cited),  236 
Enemy  property,  237 


Englishman,  The,  Sinking  of,  303 
Escape    of    interned    officers    and    men 

from  German  ships,  306 
Express,  The  (cited),  242 
Eulenberg,  Count,  xlv 
Euphrat,  Ernest  T.,  305 


Falaba,  The,  Sinking  of,  150,  158, 
255 

False  colors.  Use  of,  140,  197-204 

Favre,  Jules,  16 

Fay,  Robert,  307 

Felicity,  The  (cited),  236,  238,  244,  245 

Field,  Justice,  344 

Fish,  Hamilton,  225 

Flag,  neutral,  140;  correspondence  with 
Great  Britain,  201-204;  Ameri- 
can practice,  199-200;  Use  by 
belligerents,  197-204;  German 
authorities  on  use  of,  198 

Flood  Report  on  war  with  Germany, 
301-310;  with  Austria,  372- 
379 

Florida,  The   (cited),  127 

Flotov/,  von,  192 

Foodstuffs,  Importation  into  Germany; 
Correspondence  with  Germany 
and  Great  Britain,  91-96;  Cargo 
of  Wilhelmina,  92-94;  German 
Decree,  91;  Modus  vivendi  pro- 
posed by  United  States,  93,  96 

Force  majeure,  237 

Foreign  Relations  Committee.  See 
Senate  Committee  on  Foreign 
Relations. 

Foster,  John  W.,  313 

France,  2,  5,  12-18,  25,  27,  29,  312, 
315,  316;  Case  of  August 
Piepenbrink,  67-69;  See  Block- 
ades, Censorship,  Contraband, 
Declaration  of  London,  etc. 

Francis  Joseph,  Emperor  of  Austria 
and  King  of  Hungary,  11 

Franco-Prussian   War,   xliv-xlvi,   9-12 

Frankfort,  German  representatives  met 
to  form  empire,  2 

Frankfort  Peace,  xlvii,  2 

Franz  Ferdinand,  Archduke  of  Austria, 
assassination  of,  26 

Frederick     the     Great     (cited),     xxii- 

XXXV 

Frederick  William  IV,  King  of  Prus- 
sia (cited),  xlii;  refused  crown 
offered  by  Frankfort  Assembly,  2 

Frederick  Till,  The,  Removal  of  mails 
from,  60 

Freedom  of  the  Seas,  336-359 

French  protest  in  Trent  case,  69 

French  Revolution,  45,  103 

Fried,  Alfred   (cited),  313 


384 


INDEX 


Fritzen,  charged  with  plot  to  blow  up 

Welland  Canal,  308 
Frye,  The.     See  William  P.  Frey,  The. 
Fyffe,  C.  A.    (cited),  3,  4,  5 

Gastein,  Treaty  of,  4 

Geffcken,  Friedrich  Heinrich  (cited), 
271 

Oeier,   The,  Internment  of,   121-128 

Geneva  Award,  337 

Geneva  Convention  (Red  Cross),  106 

Geneva  Tribunal  (Alabama  Claims), 
314,  337,  338 

German  attitude  towards  arbitration, 
314 

German  charges  of  unneutral  conduct, 
54-56 

German  conceptions  of  the  State,  in- 
ternational policy  and  interna- 
tional law,  xxii-cxiv 

German  Embassy  warning  to  travelers, 
151 

German  Federation,  3 

German  Minister  to  Mexico,  Zimmer- 
mann   letter  to,  290,  305,  310 

German  Prize  Ordinance,  280-285 

German  War  Book,  xci-xcii,  47,  99, 
100,  185,  195 

Germany,  War  Book,  xci-xcii,  47,  99, 
100,  185,  195;  prize  ordinance, 
280-285;  embassy  warning  to 
travelers,  151;  Zimmermann  let- 
ter, 296,  305,  310;  refusal  to 
conclude  arbitration  treaties 
with  the  United  States  in  1907 
and  1914,  324;  refused  to  sus- 
pend submarine  operations  dur- 
ing discussion,  327.  See  also 
Armed  merchantmen,  blockades, 
etc. 

Giolotti,   Prime   Minister  of   Italy,   42 

Goschen,  Edward,  Sir,  324,  325 

Gotter,  Count,  xxix 

Granville,  Lord,  21,  224 

Gray,  George,  Justice,  227 

Great  Britain,  proposed  a  congress  to 
adjust  Balkan  Question,  21 ; 
merchant  shipping  code,  203. 
See  also  Armed  merchantmen, 
blockades,  etc. 

Greece,  21,  22 

Greve,  Dr.,  330 

Grey,  Sir  Edward,  324,  325 

Grotius,  Hugo    (cited),  22,  349-359 

Oulflight,  The,  Attack  on,  150,  254,  301 

Gustavus   Adolphus,   King  of   Sweden, 


Hasten,  The,  Attack  on,  304 
Hague  Conventions;   rights  and  duties 
of   neutrals,   58,    120,    122,    125; 


inviolability  of  mails,  62;  con- 
traband, 74 ;  use  of  projectiles, 
106,  109;  war  on  land,  109,  126; 
peaceful  settlement  of  inter- 
national disputes,  166,  314; 
mines,  208-210 

Hague  Conventions,  ratifications,  109 

Hague  Peace  Conference,  1899,  314 

Hague  Peace  Conference,  1899,  1907, 
29,  64,  74,  210,  243,  272,  278, 
279,  314,  321,  325 

Hall,  William  Edward   (cited),  45,  240 

Hamburg-American  Line,  307 

Hanover,  annexation  of  North  German 
Confederation,  5 

Hans  Libeau  Employment  Agency,  308 

Harcourt,  Sir  William  Vernon  (cited), 
341 

Harlan,  John  M.,  Justice,  339 

Hatteras,  The  (cited),  241 

Hawksbury,  Lord,  326 

Headlam,  J.  M.   (cited),  333 

Heffter,  August  Wilhelm  (cited),  265- 
268,  271 

Hegel,  Georg  W.  F.  (cited),  xxxv 

Helgoland,  208 

Hensel,  Carl  Paul,  306 

Herzegovina,  by  treaty  of  Berlin 
administered  by  Austria,  19; 
annexed  by  Austria,  21 

Hesperian,  The,  Attack  on,  302 

Hesse,  annexed  to  North  German  Con- 
federation, 5 

Heynen,  Carl,  309 

High  Seas,  339-347 

Hipsang,  The  (cited),  244 

Hired  Ships,  223 

Historicus,   Letters   of    (cited),   341 

Hobbes,  Thomas    (cited),  161-162 

Hohenburg,  Ihichess  of,  assassination, 
26 

Hohenlohe,  Prince  of,  320,  333 

Hohenzollern,  House  of,  20,  23 

Hohenzollern,  Prince  Karl  Anton,  xliv- 
xlv,  334 

Hohenzollern,  Prince  Leopold,  xliv-xlv, 
334,  335 

Hohenzollern-Sigmaringen  line,  xlv- 
xlvi,  9-12 

Holland,  23,  190 

Holls,  Frederick,  American  delegate  to 
Hague  Conference,  1899,  318, 
320 

Holstein,  Duchy  of,  2,  3,  4 

Holtzendorff,  Franz  J.  W.  P.  von 
(cited),  266 

Holy  Roman  Empire,  1 

Home  and  Foreign  Review  (cited), 
xxiii 

Hooper,  Admiral,  v.  United  States 
(cited),  226 


INDEX 


385 


Hope,  Captain,  236 

Horn,   Werner,  attempted  to  blow  up 

bridge  at  Vanceboro,  Me.,  307 
Hospital  Ships,  Attacks  on,  303 
Hovering  Warships,  110-116;  American 
ships  outside  British  ports  dur- 
ing Civil  War,  114;  Letters  from 
American     Secretary     of     State 
(Feb.   3,    1807,  May   30,    1807), 
111;    American  proclamation  of 
neutrality  (Aug.  22,  1870),  111; 
American  protest  against  hover- 
ing of  British  warships  outside 
American  ports,   110 
Huberich,   Charles    (cited),  280 
Humbert-Bazile,   xxiii 
Hungarv,  Insurrection,  1850,  5 
Hurst,  Cecil  J.  B.   (cited),  244 

Igel,  von  Wolf,  306,  308 

Ikhona,  The  (cited),  244 

Immunity  of  private  property  at  sea. 
See  Maritime  War,  Laws  of 

Indian  National  Party,  305 

Institut  de  droit  International,  xlvii, 
271,  277 

Institute  of  International  Law.  See 
Institut  de  droit  International 

Instructions  to  American  Armies  in 
the   Field,    180 

International  law,  German  concep- 
tions of,  xxii-cxiv 

International  policy,  German  concep- 
tions of,  xxii-cxiv 

Internment  of  belligerent  ships,  121- 
128;  Hague  Conventions  relative 
to,  122-123 

Internment  of  German  Ships:  Oeier 
and  Locksun,  121-128;  Kron- 
prinz  Wilhelm,  escape  of  in- 
terned officers,  306 

Internment  of  tenders  to  warships, 
121-128 

Interpretation  of  treaties  with  Prus- 
sia,   153,   285-289 

Isabella,  Queen  of  Spain,  8 

Italy,  xlvii,  5,  11,  17,  18,  22,  24,  27, 
29,   315,   321 

Jackson,  John  P.,  American  Minister 
to  Roumania,  ordered  to  investi- 
gate prison  camps,  120 

Jagow,  Herr  von,  German  Secretary 
of  Foreign  Affairs,  145,  192, 
193,  324,  325 

Japan,  11,  290,  310 

Jay,  John,  Chief  Justice  of  the  United 
States,  312,  313 

Jay  Treaty,  1794,  78,  313 

Jecker  vs.  Montgomery  (cited),  85 

Jefferson,  Thomas,  312 


John  H.  Jarvis,  The   (cited),  339 
Joint  State  and  Navy  Neutrality  Board 

(cited),   107-108,   121 
Jones,  John  Paul,  239 
Jonge  Pieter,  The   (cited),  84 

Kaltenbach,  M.,   16 

Kaltschmidt,   Albert,    307 

Karlsruhe,  The,  255 

Kent's   Commentaries    (cited),   86 

Kent,  Chancellor    (cited),  86,  340,  341 

Kiel  Canal,  22,  23,  29 

King,  Richard   (cited),  280 

King's  College,  312 

Kirkwall,  60 

Kleist,  von,  Captain,  307 

Knight  Commander,  The   (cited),  243, 

244 
Knowles,  Mr.,  American  Minister,  20- 

21 
Koenig,  Paul,  307-308 
Kopf,  Mr.,  309 
Kriege,  Dr.,  64-65 
Kriegshrauch    in    Landkriege    (cited), 

xci-xcii,  47,  99,  100,  185-187.  195 
Kronprinz   Wilhelm,   escape  of  officers 

of  the,  306 
Krum-Hellen,  Mr.,  309 
Kuepper's  Administrator    (cited),  xlii 

Labor's  National  Peace  Council,  307 

Lafayette,  The  (cited),  241 

Lalaing,  Count  de,  192 

Lancaster,  Chancellor  of  Duchy  of,  312 

Lanoir,  Paul    (cited),  12-16 

Lansing,  Mrs,  Robert,  vi 

Lansing,  Robert,  Counsellor,  Depart- 
ment of  State;  Secretary  of 
State,  ad  interim,  June  9,  Secre- 
tary of  State,  June  23,  1915 

Lasson,   Adolf    ( cited ) ,    1-lxx 

Lauenberg,   Duchy  of,  4 

Launay,   Count  de,   195 

Laurentic,  The,  Removal  of  Austrians, 
Germans  and  Turks  from,  by 
The  China,  70-72 

Lavalette,  Marquis  de,  224 

Lawrence,  William  Beach   (cited),  88 

Lawrence's  Wheaton    (cited),  88 

Leelanaio,  The,  Attack  on,  302 

Lena,  The   (cited),  123-124 

Leo,  The,  Attack  on,  302 

Leopold,  Prince,  of  Hohenzollern, 
xliv-xlvi,  9-12 

Lieber,   Francis    (cited),    180 

Lincoln,  Abraham,  68 

Liszt,  von  Franz    (cited),  273 

Loans,  to  belligerents,  Change  of 
policy  in  regard  to,  118-119 

Localization  of  Austro-Serbian  dispute, 
36-42 

Locksun,  The,  Internment  of,  121-128 


386 


INDEX 


Lombardo-Venetian  Kingdom,  5 
London    Naval    Conference.      See   Dec- 
laration of  London 
Louis,  Le    (cited),  231 
Louis  Napoleon,  5 

Louis  Phillippe,  King  of  France,  2 
Louis  XIV,  King  of  France,  xxx 
Ludivig,  The  (cited),  237,  238 
Lushington,  Dr.    (cited),  245 
Lusitania,    The,    Sinking    of,    149-168, 
172,    184,    253,    254,    256,    301, 
308;    use   of   American   flag  by, 
201.  202 
Luxembourg,  Duchy  of^  184,  188 
Lyons,  Lord    (cited),   116 


Madison,  James,  Secretary  of  State, 
111 

Mahoney,  The,  chartered  to  carry  arms 
to   India,   306 

Mails,  Censorship  of,  57-65;  American 
protest  against  removal  of  from 
ships,  60-61 ;  diplomatic  pouches, 
61;  French  memorandum,  62; 
American  statement,  March  24, 
1916,  62,  63;  Hague  Conven- 
tions regarding,  65 

Mallina,  The,  Status  of,  128 

Malloy,  Wm.  (cited),  286,  287,  289, 
312 

Manchester  Engineer,  The,  Sinking  of, 
303 

Manning,  J.  F.  (cited),  339-342 

Mansfield,   Lord    (cited),   162 

Manual  les  lois  de  la  guerre  sur  terre, 
xlvii,  xlix 

Marguerite,   The,   Sinking  of,   377 

Maria,  The  (cited),  232 

Marianna  Flora,  The  (cited),  231, 
346 

Maritime  warfare.  Rules  of,  265-289; 
immunity  of  private  property 
withdrawn  by  Prussia  (1870), 
224;  German  authorities  on, 
265-279;  German  prize  ordi- 
nance, 280-285;  Prussian- Ameri- 
can treaties,  285-289.  See  also 
Submarine  Warfare. 

Marshall,  John,  Chief  Justice  (cited), 
217 

Martens,  Fedor  Fedorovich  (cited),  50 

Mason  and  Slidell.    See  Trent. 

Matamoras  cases    (cited),  79-95 

MatineSs  royales  ou  I'art  de  rigner, 
Les    (cited),  xxiii 

Maverick,  The,  chartered  to  carry  arms 
to  India,  308 

Mazatlan,  The,  306 

Mediation  proposals,  39,  40,  41 

Mediterranean,  The,  344 


Meneval,  Baron  de,  xxiii 

Menzel,  Friedrich  W.,  clerk  in  the 
Chancellery  at  Dresden,  xxix 

Merchant  flag,  201-204 

Merchant  vessels,  status  of,  216- 
264;  right  to  arm,  216- 
229 

Meiapan,  The,  German  passengers  re- 
moved from,  67,  70 

Metapan  Steamship  Company,  70 

Mexico,  11,  290,  309,  310 

Mines,  correspondence  with  Germany 
and  Great  Britain,  205-215;  at- 
titude of  Germany  and  Great 
Britain  at  Hague  Conference, 
209;  British  Orders  in  Council, 
211-212;  German  memorandum, 
Feb.  4,   1915,  213 

Mirabeau   (cited),  146 

Mississippi,  The,  23 

Mohl,  Robert  von,  266 

Moltke,  Helmuth,  Count  von,  Prussian 
chief  of  staff  (cited),  xliv, 
xlvii-xlix,   9,    13,   335 

Mommsen,    Theodor     (cited),    xlii-xliii 

Monroe  Doctrine,  23,  316 

Monroe,  James,  American  Minister  to 
England,  111 

Montenegro,   19-21 

Moore,  John  Bassett  (cited),  116,  198, 
313 

Morocco,  24 

Miiller,  Max,  100 

Munitions  of  war,  correspondence  with 
Germany,  98-105;  sale  by  Ger- 
many to  Boers,  Russia  and  Tur- 
key, 101;  attempt  of  one  Pear- 
son to  prevent  exports  to  Great 
Britain  during  Boer  War,  105- 
106 

Miinster,  Count,  316-319,  325 

Music,  The,  339 

Napoleon    HI,    7-9,    12,    13 

Napoleonic  wars,   1 

Nassau,     Duchy     of,     annexation     by 

Prussia,  5 
Nationality    and    citizenship,    case    of 

August  Piepenbrink,   66-69 
Naval  Conference.     See  Declaration  of 

London 
Nehraskan,  The,  Attack  on,  301 
Necessity,  law  of,  184-196;  invasion  of 

Belgium,   184 
Nereide,  The   (cited),  164 
Neutral   flags,   Use  by  belligerents  of, 

140,    197-204 
Neutrality,    43-135;     proclamation    of, 

by    United    States,    43;     appeal 

by  the  President  of  the  United 

States,  48-49;  correspondence  be- 


INDEX 


387 


tween  Secretary  of  State  to  the 
Senate  Committee  on  Foreign 
Relations,  54-135;  proclamation 
of,  relative  to  Panama  Canal 
Zone,  128,  129;  agreement  be- 
tween United  States  and  Pana- 
ma, 129 

Neutrality  of  the  United  States,  43- 
135 

New  Amsterdam,  The,  Removal  of 
mails  from,  61 

Nicosian,  The,  Attack  on,  302 

Niemeyer,  Th.  (cited),  278 

Noncombatants,  confinement  in  deten- 
tion camps  of,  119-121 

Noordam,  The,  Removal  of  mails  from, 
61 

Noorder  Dyke,  The,  Removal  of  mails 
from,  61 

Norddeutsche  Allgemeine  Zeitung, 
192 

North  Atlantic  Coast  Fisheries  Arbi- 
tration, 314 

North  German  Confederation,  5,  67, 
189,   223,   224,   289 

North  German  Llovd  S.  S.  Co.,  330 

North  Sea,  23,  161,  210-215;  declared 
war  area,  161,  211;  British 
notes  and  Orders  in  Council, 
210-215 

Ocean,  The  (cited),  83 

Oldhamia,  The  (cited),  244 

Olsen,    The,    chartered    to   carry    arms 

to    India,    306 
Oppenheira,  Lassa    (cited),  279 
Orduna,  The,  Attack  on,  302 
Origin  and  extent  of  modern  practice  of 

arbitration,    311-314 
Oscar  II,  The,  Removal  of  mails  from, 

60 
Ottoman  Empire.    See  Turkey 

! 

Pacific  settlement  of  international  dis- 
putes,   166,    311-314 

Pan-Germanism,    23 

Pan-Hellenism,    23 

Panama,  The   (cited),  227,  228 

Panama  Canal  Zone,  proclamation  of 
neutrality,  Nov.  13,  1914,  128, 
129;  coaling  of  warships,  128 

Papen,   Captain   von,   306-308 

Parcel  post,  62 

Paris,    Congress    of,    21 

Paris  Exposition,  1867,  13 

Parsons,   James    (cited),   88 

Passports,  Disregard  for  American, 
116-117;  forging  of  American 
passports  by  Austrian  consuls, 
373;  misuse  of  American  pass- 
ports by  J.  F.  Archibald,  306 


Patria,  The,  Attack  on,  302 

Patrick  Henry,  The,  343 

Peace,   American   answer  to  Peace  ap- 
peal of  Benedictus  XV,  361-363 

Pearson  vs.  Parsons    (cited),   105-106 

Pegoii,  The    (cited),  229 

Penal  Code  of  the  United  States,  43-45 

Perels,     Ferdinand      (cited),     178-180, 
198,   199,  272 

Permanent  Court  of  Arbitration,  320- 
321 

Persia,  The,  Attack  on,  302,  374-376 

Persian  Gulf,  22 

Peterhoff,  The  (cited),  79-91,  229 

Petrolite,  The,  Attack  on,  302 

Phillimore,  William    (cited),  241 

Piepenbrink,   August,   Arrest   of,   66-69 

Pigou,  The    (cited),  229 

Pinkney,  William,  Secretary  of  United 
States  Treasury,  111 

Pistoye  et  Duverdy   (cited),  229 

Pitt,  William,  311 

Podewils,  Minister  of  Frederick  the 
Great    (1741),  xxii 

Poland,  xxiv,  1,  5,  13;  insurrection,  5 

Polly,  The,  86 

Pope  Leo  IX,  317 

Pomerania,  Swedish,  xxiv 

Portalis  (cited),  20,  228-229,  348 

Portugal,  23 

Posen,  13 

Postal  union,  322 

Prague,  12 

President  Woodrow  Wilson.  See  Wil- 
son,  Woodrow. 

President,  The  (cited),  237 

Prince  Christian,  3 

Prince  Anton,  9 

Prince  Leopold,  xlv-xlvi,  9-12 

Princesse  Marie,  The   (cited),  244 

Princip,  Gabrilo,  assassinated  Arch- 
duke Franz  Ferdinand  of  Aus- 
tria and  the  Duchess  of  Hohen- 
berg,  26 

Prisenordnung  (Germany),  200,  280- 
285 

Prize  Code  of  the  German  Empire,  200, 
280-285 

Prizes,  destruction  of,  234-247;  Ger- 
man authorities  on,  271-273; 
regulations  of  Institut  de  droit 
international,  271;  Hague  Con- 
ventions on,  273;  Declaration  of 
London  on,  274.  See  also  Mari- 
time Law,  Rules  of 

Proclamations  of  neutrality.  See 
United   States — Proclamations 

Protocol  of  London,  January  17,  1871, 

191 
Prussia,   xxiii-xxxvi,    6,   7;    interpreta- 
tion   of    treaties    with    United 


388 


INDEX 


states,  153.  285-289;  Prussian 
Volunteer  Navy,  223;  with- 
draws immunity  of  private  prop- 
erty at  sea   (1871),  224 

"  Prussia  was  not  swallowed  up  in 
Germany,"  Ixxxii 

Prussian-American    treaties,    285-289 

Prussian    Spy    System,    12-16 

Prussian  Volunteer  Navy,  223 

Puffendorf,  Samuel  von,  269 

Pultney,    Wm.,    311-312 

Pythagorean  theorem,  326 

Quintuple  treaty  of  1839,  189,  190 

Reay,   Lord,   278 

Regina  vs.  Dudley  (cited),  195 

Eenewal    of    submarine    warfare,    290- 

294 
Reprisals,    177-180;    German    authori- 
ties on,  178 
Republican  and  Cossack,  xlvii 
Resolutions  of  the  Institute  of  Inter- 
national Law,  277 
Restraints  on  commerce,  74-97 
Retaliation,     181-184;      correspondence 

with  Great  Britain,    182 
Rich  vs.  United  States,  339-342 
Ries,  Irving  Guy,  306 
Right  of  merchant  vessel  to  arm,  216- 

234 
Right  of  visit  and  search.     See  Visit 

and  Search 
Rights  and  duties  of  neutral  powers, 

58,   120,   122,   125 
Rintelin,  Franz,  Captain,  307,  309 
Ritter,    Paul,    Swiss    Minister    to    the 

United  States,  327 
Rockhill,   William   W.,   78 
Rode   Captain,   307 
Roeder,  Gustav  C,  306 
Roon,    Count    Albrecht    Theodor    von, 

Prussian  Minister  of  War,  xliv, 

xlvi,  9-12 
Root,  Elihu,  Secretary  of  State,  322,  323 
Rose,  J.  Holland   (cited),  311,  312 
Rotterdam,     The,    Removal     of    mails 

from,  61 
Roumania,   19,  20,  22,  315 
Rousseau,  J.  J.,  347 
Rovigo,  Duke  of,  xxiii 
Rules     of     maritime     warfare.       See 

Maritime   warfare 
Riimelin,   Gustav    (cited),   Ixx,   Ixiii 
Ruroede,   Carl,   306 
Rush-Bagot   agreement,   313 
Russell,  Lord  Odo,  21,  69,  71 
Russell,  Lord  John,   197 
Russia,   xxi,   5,    11,    17-19,    21-28,   307, 

315,  316,  324 


Russo-Japanese  War,  91,  243,  246,  247, 

272 
Russo-Turkish  War,  1877-1878,  19,  191 

Sadowa,  5,   12 

St.  Kilda,  The    (cited),  244 

San  Jacinto,  The   (cited),  67,  70 

Sanders,  Albert,  violation  of  neutrality 
by,  306 

Savary,  General,  Duke  of  Rovigo,  xxiii 

Saxony,   xxvii 

Schaick,  Vice  Consul  General  von,  307 

Scheele,  Walter  T.,  Dr.,  307 

Scheldt,  The,  23 

Schleinitz,  335 

Schleswig-Holstein  question,  2,  3,  4,  6, 
12 

Scholts,  Walter,  307 

Schooner  Jane  vs.  The  United  States, 
The   (cited),  227 

Schramm,  Georg   (cited),  200 

Schuylkill,  The,  Sinking  of,  377 

Schurz,  Carl    (cited),  7-8 

Scott,  Sir  William.     See  Stowell,  Lord 

Scraps  of  paper,  xlvii,  327 

Search,  Right  of.    See  Visit  and  Searck 

Second  Hague  Peace  Conference.  See 
Hague  Peace  Conferences. 

Secondo,  The,  Sinking  of,  375 

Secretary  of  State.  Correspondence 
with  Senate  Committee  on  For- 
eign Affairs,  54-135 

Semmes,  Raphael,  Captain  (cited),  241 

Senate  Committee  on  Foreign  Affairs. 
Correspondence  with  Secretary 
of  State  respecting  neutrality, 
54-135 

Serajevo,  26 

Servia,  19,  20,  21,  22,  27,  42;  reply 
to  Austrian  ultimatum,  27-36; 
Advised  to  reply  to  Austria  so 
as  to  preserve  peace,  41-42 

Severance  of  diplomatic  relations  with 
Germany,  295-297;  with  Aus- 
tria, 377-378 

Seward,  William,  Secretary  of  War, 
68,   116,   160 

Sliaw,  U.  A.,  xxiii 

Silesia,  xxiv 

Silius,  The,  Sinking  of,  302 

Sinking  of  ships,  301-304,  374-377 

Smith,  Goldwin    (cited),   100-101 

Smith,   Munroe    (cited),   325 

Snow,  Freeman    (cited),  241 

Somerfeld,    Felix,   309 

Spies,   Prussian,    12-16 

Springbok,  The   (cited),  79,  89-90 

Staal,  M.  de,  President  of  First 
Hague  Peace  Conference,  315,  318 

Stahl,  Gustav,  violation  of  American 
neutrality,   by,   308 


INDEX 


389 


Stallforth,  violation  of  American  neu- 
trality by,  309 

Stert,  The  (cited),  83 

Stieber,  Chief  of  Prussian  Spy  Sys- 
tem, 12-16 

Stockholm,  The,  Removal  of  mails 
from,  60 

Stone,  William,  Senator,  Letter  to 
Secretary  of  State  from,  54-135 

Storstad,  The,  Sinking  of,  304 

Story,  Justice,  231,  344 

Stowell,  Lord  (cited),  78,  86,  232- 
236,  245 

Streit,  Georges   (cited),  209 

Submarine  warfare,  Germany,  136, 
177-180,  197;  renewal  of,  290- 
294;   Austria,   374-377 

Sumter,  The   (cited),  241 

Sussex,  The,  Sinking  of,  150,  169-176, 
263,  303 

Switzerland,  Minister  from,  presented 
memorandum  from  Germany 
offering  to  discuss  submarine 
policy,   327 

Syria,  xxxiv 


Tacony,  The  (cited),  127 
Tarnowsky,  Count  Adam,  xx,  376 
Tauscher,  Hans,  Captain,  308 
Tetartos,  The  (cited),  244 
Thea,  The  (cited),  244 
Thile,  335 

Thomas  Gibbons,  The  (cited),  226 
Thrasher,  Leon  C,  Death  of,  150 
Three  Rules  of  Treaty  of  Washington, 

337 
Trade  with  Germany,  91-96 
Trade  with  neutrals,  79-91 
Trans-shipment   of   troops,    120-121 
Treaties    (cited),  Treaty  of  the  Pyre- 
nees (1659),  267;  United  States- 
Great  Britain    (1794),  78,  313; 
Prussia-United      States      (1799, 
1828),    153,   285-289;    Treaty  of 
London    (1839),   188;  Treaty  of 
London   (1852),  3,  4;  Treaty  of 
Paris       (1856),      11,      17,      21 
Treaty  of  Vienna    (1864),   3,   4 
6;  Treaty  of  Gastein   (1865),  4 
Treaty    of    Prague     (1866),    5 
Treaty    of    Nikolsburg     (1866) 
5;  Bancroft  Treaty  (1868),  67 
Treaty  of  Frankfort  (1871),  18 
Treaty  of  London    (1871),   190- 
191 ;      Treaty     of     Washington 
(1871),     337;     Treaty    between 
Austria  and  Germany  (1878),  6; 
Treaty   of   San   Stefano    (1878), 
19;    Treaty    of    Vienna    (1879), 
25;  Great  Britain- Russia  (1899), 


26;  Great  Britain-Prance  (two 
in  1904),  26;  Great  Britain- 
Russia  (1907),  26;  Great  Brit- 
ain-France (1907),  26;  Treaty 
of  Lausanne  (1912),  24;  Treaty 
of  Bucharest  (1913),  22;  Treaty 
of  London  (1913),  22;  Great 
Britain-France,  Russia  (1914), 
26 ;  Panama-United  States 
(1914),  129 
Treaties  are  scraps  of  paper,  xlvii 
Trietschke,    Heinrich     (cited),    Ixxiii- 

xci 
Tremeadow,  The,  Status  of,  128 
Trent,  The    (cited),  67-71,   114 
Triepel,  Heinrich  (cited),  278-279 
Triple  Alliance,  xlvii,  22,  24-26,  29,  42 ; 
dociunents  relating  to,  26;  text, 
25,  26;   Italy  joined    (1882),  24 
Triple  Entente,  25,  26 
Troops,  transshipment  of  British,  120, 
121 ;  Hague  Convention  concern- 
ing,   120 
Tubantia,  The,  Sinking  of,  302 
Tuckerton,  New  Jersey    (wireless   sta- 
tion), 57 
Timis,  18,  24 

Tunisie,  The,  Attack  on,  304 
Turkey,   19,  20,  22,  315,  369-370 
Turner,  Judge  (cited),  106 
Tuscaloosa,  The   (cited),  127 


Ullmann  Emanuel  von  (cited),  272 

Ulrica,   Princess,   xxviii 

Unfriendly  acts  of  United  States  to- 
ward Central  Powers,  132-134 

Union  Metallic  Cartridge  Company, 
107 

United  States  Navy,  Order  of  August 
18,  1862,  destruction  of  prizes, 
238-240 

United  States  vs.  Rodgers  (cited),  343 

United  States,  naval  war  code,  180, 
198;  penal  code,  43-45;  procla- 
mations, 77-78,  111,  228; 
public  resolution  declaring  a 
state  of  war  to  exist  with  Ger- 
many, xxi-xxii;  report  of  House 
Committee  on  foregoing,  301- 
310;  public  resolution  declaring 
a  state  of  war  to  exist  with  Aus- 
tria, 379;  report  of  House  Com- 
mittee on  foregoing,  372-379; 
circular  of  Treasury  Department 
on  contraband  (1862),  77; 
Treaty  with  Great  Britain 
(1794),  78,  313;  Treaty  with 
Panama  (1914),  129;  treaties 
with  Prussia  (1799,  1828), 
285-289,   328,   332 


390 


INDEX 


Vanceboro,  Maine,  Attempt  to  blow  up 

international  bridge  at,  307 
Van  del  Elst,   192 
Vattel,  Emmerich  de    (cited),  233 
Vergennes,  Count  de,  312 
Versailles,    King    of    Prussia    crowned 

Emperor  of  Germany  at,   11 
Vessels,   Attacks    on,    and    sinking   of, 

301-304,  374-377 
Victoria,  Queen  of  England,  11,  25 
Vienna,  Congress  of,  1-2,  Ixviii 
Villa,    Francisco,    309 
Vinland,  The,  Stopping  of,  by  British 

cruiser   within  three-mile  limit, 

112 
Visit  and  Search,  230-234 
Volunteer  Fleet,  Prussian,  223 
Vorwdrts,  Der  (cited),  238 


Walkerville,   Canada,   307 

War    is    Prussia's    principal    industry, 

146 
Warships,  rights  and  duties  of  neutral 

powers     relative     to,      122-125; 

treatment     in     Panama     Canal 

Zone,     128-132;     internment    of, 

123-128 
War  with  Austria,  House  report,  372- 

379 
War  zones,  205-215 
Washington,     Treaty     of     1871.       See 

Wedell,  Hans  von,  306 
Wehberg,  Hans    (cited),  274-277 
Weingarten,     Secretary     to     Austrian 

Ambassador  to  Prussia,  xxix 
Welch  Prince,   The,   Sinking  of,   375 
Welland  Canal,  plot  to  blow  up,  308 
White,  Andrew   D.,  American  delegate 

to     Hague     Conference     (1899), 

315-321 


Wheaton,  Henry    (cited),  88,  228,  266, 
341 
(Lawrence's  and  Dana's  editions) 

Whewell,  W.    (cited),  22 

Whittall,  C,  xxiii 

Whittall,  Sir  James  William,  xxiii 

Wico,  The,  Seizure  of,  52 

Wilhemina,  The,  Seizure  of,  92-96 

Wilkes,  Charles,  Captain,  114 

William  P.  Frye,  The,  Sinking  of,  288, 
326-335;  application  of  Prus- 
sian-American treaties,  285-289; 
judgment  of  prize  court,  32>S ; 
question  of  indemnity,  329 ; 
agreement  to  arbitrate,  330 

William  I,  King  of  Prussia  and  Em- 
peror of  Germany,  8,  12,  13,  334 

William  II,  Emperor  of  Germany,  cxiv 

William,  The    (cited),  86 

Wilson,  Woodrow,  xiii-xxi;  address  of 
April  2,  1917,  xiii-xxi;  appeal 
to  people  to  observe  neutrality, 
48,  49;  address  of  December  5, 
1917,    364-372 

Winchester  Repeating  Arms  Company, 
107 

Windber,  The,  Arrest  of  August 
Piepenbrink  on,  67 

Windsor,  Canada,  307 

Wireless,  57 

Wolpert,  Captain,  307 

W^unnonberg,  Charles,  306 

Yasaka  Maru,  The,  Sinking  of,  302 

Zanardelli,  195 

Zerbst,  Princess  of,  xxvii 

Zimmermann,  Alfred,  letter  to  German 

Minister  to  Mexico,  11,  17,  290, 

309,   310 
ZinzendorfF,  xxix 
Zorn,  Philip   (cited),  315,  318 


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